Unknown Party v. Arizona Board of Regents

• Court: District Court, D. Arizona
• Decided: August 30, 2022
• Docket: 2:18-cv-01623
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Unknown Party, No. CV-18-01623-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Arizona Board of Regents, et al., 13 Defendants. 14 15 INTRODUCTION 16 In April 2016, Plaintiff John Doe, then a student-athlete at Arizona State University 17 (“ASU”), and another male ASU student had a three-way sexual encounter with ASU 18 student Jane Roe at an off-campus party. Roe immediately reported the incident to the 19 police, who declined to pursue criminal charges against Doe after reviewing videotape 20 footage of the incident (which the other male participant had surreptitiously created). 21 Several months later, Roe reported the incident to ASU, claiming she had been too 22 intoxicated to consent. Doe was suspended by ASU and, after an investigation, expelled 23 for violating various provisions of the ASU Student Code of Conduct (“the Code”), 24 including provisions related to sexual misconduct. 25 In this action, Doe sued various ASU employees and students (“Individual 26 Defendants”) and the Arizona Board of Regents (“ABOR”). Doe initially asserted federal 27 claims under 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972 (“Title 28 IX”), as well as state-law claims for breach of contract, gross negligence, intentional Case 2:18-cv-01623-DWL Document 209 Filed 08/30/22 Page 2 of 60

1 infliction of emotional distress, and false light invasion of privacy. However, during earlier 2 stages of the case, the Court dismissed (Doc. 40) or granted summary judgment in favor of 3 the applicable defendants (Doc. 139) on all of Doe’s claims except his Title IX claim 4 against ABOR. 5 Additionally, as this case was proceeding, Doe prevailed in a separate state-court 6 action in which he sought review of ASU’s expulsion decision. There, the Arizona Court 7 of Appeals held that the sexual misconduct findings against Doe were “not supported by 8 substantial evidence” and thus vacated the expulsion order. Doe v. Ariz. Bd. of Regents, 9 2019 WL 7174525, *9 (Ariz. Ct. App. 2019). 10 Against this backdrop, ABOR now moves for summary judgment on Doe’s Title IX 11 claim. (Doc. 155.) For the following reasons, the motion is denied. 12 BACKGROUND 13 The background facts below are taken from the parties’ summary judgment 14 submissions and other materials in the record and are uncontroverted unless otherwise 15 noted. Additional facts bearing on the parties’ specific summary judgment arguments are 16 addressed in the Discussion portion of this order. 17 I. The Incident 18 On the evening of April 2, 2016, Doe and Roe attended the same off-campus party. 19 (Doc. 189-2 at 16, 43.) During the party, Roe (who was 19 years old at the time, and thus 20 not legally allowed to drink alcohol) drank several shots of vodka. (Doc. 155-3 at 10; Doc. 21 189-2 at 43-44.) Roe also danced in a sexual manner with Doe and another male attendee, 22 Witness 1, and kissed both of them. (Doc. 155-4 at 1.) According to a sober eyewitness, 23 Roe did not appear to be intoxicated or incapacitated as she was dancing with and kissing 24 Doe and Witness 1. (Id.) 25 Roe went into a bedroom with Doe and Witness 1, where they engaged in group 26 sexual activity.1 (Doc. 189-2 at 44.) At one point in the encounter, Witness 1 27 1 To the extent there are lingering factual disputes about the specifics of Doe’s 28 encounter with Roe and Witness 1, they are not material to the resolution of ABOR’s summary judgment motion.

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1 surreptitiously took out his cell phone and videotaped Roe and Doe. (Id. at 45.) The 2 encounter ended after Roe complained of pain. (Doc. 155-4 at 110.) Roe eventually left 3 the room, found a friend, and left the party. (Doc. 189-2 at 45.) 4 II. The Criminal Investigation By The Tempe Police Department 5 On April 3, 2016 (the next day), Roe contacted the Tempe Police Department to 6 report that “she was so intoxicated that she was not able to move or try to physically prevent 7 the incident while it was occurring” and that “she never gave consent for the sexual 8 intercourse with [Witness 1] or [Doe] and that she did not want it to happen.” (Doc. 189- 9 2 at 44-45.) Roe also reported that “[s]he could still remember most things” and “told [the 10 males] to stop because [the sex] was hurting.” (Id. at 48-49.) 11 A police officer transported Roe to the Mesa Family Advocacy Center for a 12 forensics exam (“SANE exam”). (Doc. 155-4 at 108.) A forensics nurse reported that Roe 13 suffered “numerous genital tears” and “bruises on both her legs.” (Id.) 14 As part of the ensuing investigation, a police detective obtained and viewed a copy 15 of the cellphone video that Witness 1 had taken. (Doc. 155-3 at 25.) After the Tempe 16 Police Department completed its investigation of Roe’s allegations, “criminal charges were 17 not pursued against” Doe. (Doc. 155-10 at 67.) 18 III. Title IX Developments At ASU 19 A. The “Dear Colleague” Letter 20 In 2011, the United States Department of Education’s (“DOE”) Office of Civil 21 Rights (“OCR”) issued a document known as the “Dear Colleague” letter. (Doc. 155-6 at 22 2-20.) The letter began by noting that “[s]exual harassment of students, which includes 23 acts of sexual violence, is a form of sex discrimination prohibited by Title IX” and 24 explaining that the purpose of the letter was “to assist recipients, which include school 25 districts, colleges, and universities . . . in meeting [their Title IX] obligations” by “lay[ing] 26 out the specific Title IX requirements applicable to sexual violence.” (Id. at 2.) 27 As for those requirements, the letter stated that “in order for a school’s grievance 28 procedures to be consistent with Title IX standards, the school must use a preponderance

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1 of the evidence standard . . . . The ‘clear and convincing’ standard . . . is a higher standard 2 of proof [that is] not equitable under Title IX.” (Id. at 12.) The letter also stated that “OCR 3 strongly discourages schools from allowing the parties personally to question or cross- 4 examine each other . . . . Allowing an alleged perpetrator to question an alleged victim 5 directly may . . . perpetuat[e] a hostile environment.” (Id. at 13.) Although the letter stated 6 that “[p]ublic and state-supported schools must provide due process to the alleged 7 perpetrator,” it emphasized that “schools should ensure that steps taken to accord due 8 process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX 9 protections for the complainant.” (Id.) Finally, the letter stated that “[w]hen conducting 10 Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients. 11 When a recipient does not come into compliance voluntarily, OCR may initiate 12 proceedings to withdraw Federal funding by the Department [of Education] or refer the 13 case to the U.S. Department of Justice for litigation.” (Id. at 17.) 14 B. The “Start By Believing” Campaign 15 On April 4, 2016, ASU President Michael Crow, ASU Executive Vice President Dr. 16 Morgan R. Olson, and ASU Chief of Police Michael Thompson signed a proclamation 17 supporting the “Start By Believing” public awareness campaign. (Doc. 189-2 at 100.) 18 ASU Title IX Coordinator Jodi Preudhomme attested to the proclamation. (Id.) The 19 proclamation reads: 20 Whereas, Arizona State University shares a critical concern for victims of sexual violence and a desire to support their needs for justice and healing; 21 and 22 Whereas, research estimates that as many as 1 in 5 women and 1 in 71 men 23 are the victim of sexual assault in their lifetimes . . . yet most will not report the crime to law enforcement . . . and 24 Whereas, research documents that victims are far more likely to disclose their 25 sexual assault to a friend or family member, and when these loved ones respond with doubt, shame, or blame, victims suffer additional negative 26 effects on their physical and psychological well-being; and 27 Whereas, the Start by Believing public awareness campaign is designed to 28 improve the responses of friends, family members, and community professionals, so they can help victims to access supportive resources and

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1 engage the criminal justice system; 2 NOW, THEREFORE, I, Michael M. Crow, President of Arizona State University, do hereby proclaim, in concert with Arizona State University 3 Police Department, the first Wednesday of April each year as “Start By 4 Believing” Day to show our commitment to the awareness of, prevention and response to sexual violence. 5 6 (Id.)

7 C. OCR’s Title IX Investigation Of ASU

8 In October 2016, ASU received a complaint from a male student (“Complainant”)

9 accusing another male student (“Respondent”) of sexual misconduct. (Doc. 189-2 at 86.)

10 After an investigation, ASU concluded there was insufficient evidence to establish, by a

11 preponderance of the evidence, that Respondent engaged in sexual misconduct. (Id. at 91.)

12 Afterward, OCR investigated ASU’s rejection of this complaint to determine

13 whether ASU had complied with Title IX. In a letter to an OCR representative dated

14 December 1, 2017, ASU’s associate general counsel provided a detailed summary of

15 ASU’s underlying investigation. (Id. at 86-98.) In the final paragraph of this letter, ASU’s

16 representative wrote: “ASU complied with the requirements of Title IX, as well as its own

17 polices, when responding to [Complainant’s] initial complaint and the related complaints

18 that followed. . . . ASU looks forward to a prompt and favorable resolution of this

19 investigation.” (Id. at 98.) The ASU recipients copied on the letter included Dr. James

20 Rund. (Id.) The record does not reveal how or when OCR concluded its investigation.

21 IV. The Initial Investigation Of Roe’s Complaint By ASU

22 On September 16, 2016, Roe reported the incident to ASU’s police department.

23 (Doc. 155-1 at 7.) This was a little over five months after the incident. (Id.)

24 On September 17, 2016, Dr. Kendra Hunter, ASU’s associate dean of students,

25 received a corresponding report that identified Doe and Witness 1 as “ASU wrestling

26 students.” (Id. at 6-8.) The report stated that Witness 1 was “no longer an ASU student

27 but is going to school somewhere in Colorado. [Roe] thinks that [Doe] may still be a

28 student at ASU.” (Id. at 8.) Dr. Hunter soon forwarded the report to her colleagues, stating:

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1 “See below. I would like for us to engage [Roe] from advocacy today to share resources 2 and options for moving forward . . . in hopes that Carla can meet with her today and take 3 her statement so we can figure out what to do with the male. He is a wrestler, so clearly 4 we would want to move swiftly, but not before we engage [Roe].” (Id. at 7.) 5 On September 19, 2016, Roe was interviewed by Tara Davis, a member of ASU’s 6 Office of Student Rights and Responsibilities (“SRR”), which “investigates any alleged 7 violation of the student code of conduct.” (Doc. 155-7 at 50-77.) The interview was 8 recorded and transcribed. (Id.) Davis explained that an administrative investigation is 9 distinct from a criminal investigation in at least two important respects: first, administrative 10 investigations are subject to a “more likely than not” standard rather than the criminal 11 “reasonable doubt” standard (id. at 55), and second, “because we are not law enforcement, 12 we cannot subpoena information. That means it’s going to be up to you to provide us with 13 whatever information you feel is relevant; provide us with names of witnesses; provide 14 your own statements. It’s going to have to be, unfortunately, on your shoulders to 15 determine what it is that you feel like you want me to know.” (Id. at 56.) 16 Davis noted that Doe “also will have an opportunity to come in and provide 17 information just like you, and at the end of the investigation I’ll prepare a report and you 18 will know exactly what I’ve been able to collect because throughout this process my job is 19 just to be that neutral third-party investigator, not the decider.” (Id. at 63-64.) 20 Davis further explained that “I also don’t call the police. [However,] I’m going to 21 coordinate with the police, which means before they have an opportunity to confront [Doe], 22 I don’t want to get out in front of him and blow whatever processes they may be having 23 . . . . They often call them confrontation calls. . . . So, I, at the end of this, will want your 24 detective’s information so I can contact your detective and make sure they don’t need any 25 more confrontation calls because it would be disruptive to their processes if I was . . . to 26 call them first, you know. So it’s going to be important that I coordinate. So you may see 27 that I don’t respond on this today. It may take me a few days before the police give me the 28 green light to contact [Doe]. So I—I want to give you a heads-up. That doesn’t mean that

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1 we’re ignoring you; it means we have to work with the police department on our timing. 2 Okay?” (Id. at 57-58.) 3 Finally, at the end of Roe’s interview, Davis mentioned that “[b]ecause like we 4 talked about earlier about coordinating our efforts, now that there’s a legal case I also don’t 5 want to interfere with any motions they may be having or things like that. . . . So I’ll wait 6 to—you know, to move forward, especially because they have pending charges. Okay? 7 . . . But I will ask [Roe’s detective liaison] if he feels that it would be possible for me to go 8 ahead and charge the student now.” (Id. at 72-73.) After summarizing “next steps,” Davis 9 repeated that “I’m going to reach out to the [detective], and I’m going to ask the detective 10 about what would be the appropriate timing for me, and then I will let you know. . . . As 11 soon as I have the green light, I will charge both of them. . . . It’s just I have to defer to the 12 police first. . . . Okay? I have to let them take the lead.” (Id. at 75-76.) 13 On September 21, 2016, Doe was informed via email that he was being placed on 14 interim suspension. (Doc. 189-2 at 16.) The email stated that the basis for the suspension 15 was Roe’s report that Doe “provided alcohol to a minor female student of ASU. After she 16 became heavily intoxicated, you and another male took her to a room in your off-campus 17 house where you engaged in oral and vaginal sex without her consent. Reportedly, a 18 camera was used to record the sexual acts and the female did not consent to the recording.” 19 (Id.) The letter informed Doe that, if true, his behavior would violate sections F-15, F-23, 20 and F-25 of the ASU Code of Conduct (“Code”), which set forth the university’s alcohol 21 policy, sexual misconduct policy, and surreptitious recording policy. (Id. at 16-17.) The 22 letter further explained that sexual misconduct is defined by ASU policy as including 23 “Sexual violence and other non-consensual sexual contact—actual or attempted physical 24 sexual acts perpetrated against a person by force or without consent.” (Id. at 16.) 25 On September 22, 2016, Davis met with Doe. (Doc. 155-8 at 2-28.) That meeting 26 was also recorded and transcribed. (Id.) Davis notified Doe that he was being investigated 27 for violations of the Code related to alcohol, sexual misconduct, and surreptitious 28 recording. (Id. at 10-12.) Davis further informed Doe that she would handle ASU’s

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1 investigation, acting as “a neutral third party investigator,” and that her job was to “collect 2 information, anything I can get, by speaking to people, by collecting documentation that 3 may be available, and then I just compile a report.” (Id. at 7.) Davis also explained the 4 “more likely than not” standard and how it differed from the criminal “beyond a reasonable 5 doubt” standard. (Id. at 8.) She listed “resources we have available” for Doe, including a 6 confidential counseling resource in case “you’ll be up at 3:00 in the morning and unable to 7 sleep or maybe you get some anxiety and want someone to talk to.” (Id. at 13.) Davis 8 explained that she would not ask Doe to make a statement and he did not have to answer 9 any questions, and in fact he could choose “not to come in at all at any point.” (Id. at 16- 10 17.) However, Davis also warned Doe that the Dean’s Review Committee (“the 11 Committee”) would determine whether Doe violated the Code “based on whatever 12 (information) is available to them. So if there is a wealth of information from [Roe’s] side, 13 that will be all that is considered. And so you respond in the way that you feel is best that 14 your attorney will advise you. . . . You can come back next week and still not say anything, 15 and that’s okay . . . . Just know that there would be an absence of information, and so when 16 a decision is made, it would wind up being only from one side that information would be 17 had.” (Id. at 17-18.) 18 Following this meeting, Davis continued with the investigation, ultimately meeting 19 with Doe three more times: on September 26, 2016 (id. at 31-65), November 18, 2016 (id. 20 at 67-83), and December 21, 2016 (Doc. 155-9 at 2-19). 21 Davis also met with Roe several more times. During one meeting, which took place 22 on November 27, 2016, Davis mentioned that a decision would be coming soon and 23 reminded Roe that “if the decision is suspension or expulsion, there is a right to appeal 24 . . . . So even though you’re asking, like, what’s the timeline on this, know that if there is 25 an appeal, it may continue.” (Doc. 189-2 at 39-41.) Roe asked, “What does it mean if 26 there’s an appeal?” (Id.) Davis responded that “if the decision is suspension or expulsion, 27 he has the right to say, I disagree and I want the investigation reheard,” and explained the 28 composition of the rehearing board. (Id.) Davis then explained that “the university would

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1 represent you and would say, We, as a university, suspended or expelled him because of 2 all this information. And they would present their case. [Doe] would have an opportunity 3 to [respond].” (Id. at 41.) 4 On December 11, 2016, Davis met again with Roe, this time to review Doe’s 5 counsel’s response to a draft of Davis’s investigative report. (Doc. 155-1 at 81.) During 6 this meeting, Roe made several statements regarding the incident, including that “while 7 [Doe] and [Witness 1] were having sex with her, she was not aware of what was going on 8 because she was too intoxicated” (id. at 94); that “she was unable to fight back because she 9 was too intoxicated” (id. at 96); that “she was not aware that a photo was taken, but 10 remembers seeing a flash” (id. at 98); that “she did not say ‘stop’ because she was too 11 intoxicated,” that she “could not resist and denied demonstrating an ability to do so,” and 12 that she “cried because she was in pain and did not comprehend that she was having sex 13 with [Doe] and [Witness 1]” (id. at 99); that Doe’s contention that she “didn’t say anything 14 to refuse sex” was not exculpatory “because the Code of Conduct states consent cannot be 15 inferred from passivity” (id. at 100); that “she was too intoxicated to say no or physically 16 refrain” (id. at 102); that “she does not remember what happened” (id. at 104); that “her 17 statements are based on the police report and information from (the county) attorney” and 18 “she is not stating what she saw, she is stating what she found out” (id. at 106); and that 19 “she was incoherent and did not understand what was happening” (id. at 107). 20 On December 20, 2016, Davis sent her final investigative report to the Committee. 21 (Id. at 65-124.) That same day, Davis informed Doe’s counsel via email of the report’s 22 transmission. (Doc. 189-2 at 64.) Doe’s counsel responded: “Was there no additional input 23 from [Roe]? If additional facts were provided, we would like to know of those.” (Id.) 24 Davis responded that Roe “did have the opportunity to respond to the information you 25 provided. Although she disagreed with statements in your letter, she did not offer any new 26 evidence or witnesses. I am happy to have you come in to view her responses.” (Id. at 63.) 27 Doe’s counsel asked: “Because the matter is already sent to the Dean, what would the point 28 of review be?” (Id.) Davis responded that “[w]e can . . . delay the outcome one day if you

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1 would like to see [Roe’s input] before the Dean concludes the case.” (Id. at 63.) 2 On December 21, 2016, after reviewing Roe’s December 11, 2016 statements, Doe 3 submitted a letter to Davis stating that there was, “contrary to [Davis’s] email, substantial 4 new evidence, including statements about state of mind, relationships, changes in position, 5 and other matters.” (Id. at 52.) 6 V. The Committee’s Expulsion Decision 7 On December 21, 2016, before receiving Doe’s supplemental letter, Dr. Jennifer 8 Hightower, ASU’s acting dean of students, determined that Doe had violated section F-15, 9 the university’s alcohol policy, and section F-23, the university’s sexual misconduct policy. 10 (Doc. 155-2 at 72-23.) Doe was not found responsible for violating section F-25, the 11 university’s surreptitious recording policy. (Id. at 72.) 12 Dr. Hightower signed an initial expulsion letter that day. (Doc. 155-1 at 42.) 13 Nevertheless, “[b]ecause Doe had submitted an additional response to the investigative 14 material and the investigative report,” Dr. Hightower “wanted to review that material, and 15 so therefore she did. And then after that made the determination and needed to resign a 16 letter.” (Id.) The second expulsion letter was sent to Doe on December 22, 2016. (Id.) 17 VI. The UHB Hearing 18 Doe appealed Dr. Hightower’s decision to the University Hearing Board (“UHB”). 19 (Doc. 155-4 at 46.) Before the UHB hearing, Doe and the Dean of Students’ Office 20 (“DSO”) exchanged documents and witness lists. (Id. at 12-15, 51, 60, 91-92.) 21 At the hearing, which took place on May 23, 2017, Doe’s counsel made opening 22 statements and closing arguments, presented evidence, cross-examined DSO witnesses, 23 and called witnesses to testify on Doe’s behalf. (Doc. 155-4 at 51-52.) The chair of the 24 UHB extended the length of the hearing multiple times at Doe’s request, although the chair 25 did not grant Doe’s extension requests in full. (Doc. 155-4 at 190.) Near the end of the 26 hearing, the chair warned Doe that there were only 20 minutes remaining, and Doe’s 27 counsel responded: “We have two experts. . . . Cindi [Nannetti is] going to take a while 28 and then I have one other witness [a toxicologist], but if I don’t get to him, I don’t get to

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1 him.” (Id. at 4.) Doe’s counsel did not ultimately call his second witness. 2 The UHB issued its findings and recommendations on May 30, 2017. (Id. at 100- 3 16.) First, the UHB found that Doe violated the portion of section F-23 that defines sexual 4 misconduct as “sexual violence . . . attempted [by] physical sexual acts perpetrated against 5 a person by force” because Doe had “engaged [Roe] by force.” (Id. at 110.) On this point, 6 the UHB was persuaded by (1) Roe’s testimony that the sex caused her pain, (2) Witness 7 1’s statements to the same effect when speaking to the Tempe Police Department, and (3) 8 the results of the SANE exam, which revealed minor physical and genital injuries that were 9 consistent with Roe’s text messages, which complained of abrasions. (Id. at 110-11.) The 10 UHB acknowledged that it had previously identified a different “rationale” for the section 11 F-23 violation, which was that “the encounter was non-consensual,” but concluded there 12 was insufficient evidence to show that Roe refused consent or was too incapacitated to 13 provide consent. (Id. at 111-12.) Nevertheless, the UHB deemed the absence of evidence 14 on this point “peripheral” in light of the evidence of force that “justifies the F-23 violation.” 15 (Id. at 112-13.) Second, the UHB found that it was more likely than not that Doe violated 16 section F-15, because Doe had “admit[ted] that he distributed alcohol to [Roe], who is 17 underage.” (Id. at 113.) The UHB thus upheld Doe’s expulsion. (Id.) 18 VII. Dr. Rund’s Review Of The UHB’s Decision 19 The UHB’s findings were given to Dr. Rund, ASU’s final arbiter on student 20 misconduct issues. In a letter dated June 27, 2017, Dr. Rund overruled the UHB’s finding 21 of no incapacitation, adopted the UHB’s finding of impermissible force, and adopted the 22 UHB’s conclusion on the alcohol charge. (Id. at 183-84.) 23 In a letter dated August 30, 2017, Dr. Rund denied Doe’s motion for reconsideration 24 of his ruling. (Id. at 186.) Among other things, Dr. Rund explained his decision to overrule 25 the UHB’s finding of no incapacitation. (Id. at 188.) Dr. Rund noted that “[i]t is 26 uncontroverted that [Doe] and [Roe] were drinking at the same event, so there is no 27 question that [Doe] saw [Roe] drinking shots of vodka.” (Id.) Dr. Rund also observed that 28 “[d]uring the confrontation call, [Doe] acknowledged that [Roe] had previously told him

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1 that she was not going to have sex with him.” (Id.) Dr. Rund stated that “[a] reasonable 2 person who had previously had this conversation, and who had then been with [Roe] while 3 she was drinking, should have known that [Roe] was not in a position to make informed, 4 rational judgments when she went into a bedroom with not just one, but two males. At the 5 very least, [Roe] was engaging in outrageous behavior evidencing her intoxication level.” 6 (Id.) Dr. Rund also identified two other facts that “betray [Doe’s] claim that he lacked 7 knowledge of [Roe’s] intoxication to the point of incapacity” and “reveal[] his awareness 8 of [Roe’s] incapacitation”: first, that Doe “had no trouble believing that [Roe] had very 9 little recollection of the encounter,” and second, that after Roe “cried out” during the 10 encounter, Doe “immediately said to [Witness 1] ‘we should stop, we don’t want her filing 11 a report.’” (Id. at 189.) Dr. Rund stated that “[t]his is clear evidence that [Doe] knew what 12 he was doing was wrong.” (Id.) 13 VIII. Doe’s Appeal To The Maricopa County Superior Court 14 On October 2, 2017, Doe appealed ASU’s expulsion decision to the Maricopa 15 County Superior Court pursuant to A.R.S. § 12-901 et seq. (Doc. 28 at 1.) 16 On October 29, 2018, the Maricopa County Superior Court issued a six-page order 17 rejecting Doe’s appeal. (Doc. 40-1.)2 The court concluded that Dr. Rund’s incapacity, 18 force, and alcohol-related determinations were “supported by substantial evidence” (id. at 19 5-7), that “Doe was not denied due process” (id. at 7), and that the penalty of expulsion 20 was not excessive (id. at 7-8). 21 IX. Doe’s Appeal To The Arizona Court Of Appeals 22 Doe appealed to the Arizona Court of Appeals. Doe v. Arizona Bd. of Regents, 23 2019 WL 7174525 (Ariz. Ct. App. 2019). In a decision issued in December 2019, the 24 appellate court affirmed in part and vacated in part. First, the court held that the evidence 25 adduced at the hearing “could not lead a reasonable mind to conclude ASU proved [Roe] 26 27 2 The Superior Court’s order and the Court of Appeals’ decision are both subject to judicial notice. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 28 2006) (“[Courts] may take judicial notice of court filings and other matters of public record.”) (citation omitted).

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1 was [incapacitated] on the night in question,” and thus Dr. Rund’s finding that Doe violated 2 section F-23 because Roe was incapacitated was an abuse of discretion. Id. at *6. Second, 3 the court held that a reasonable mind could not find that Doe engaged in sex with Roe by 4 force, and thus Dr. Rund’s finding that Doe violated section F-23 because he used force 5 was an abuse of discretion. Id. at *7-8. Third, the court upheld Dr. Rund’s finding that 6 Doe provided alcohol to Roe when she was underage, violating section F-15. Id. at *8. 7 The court declined to address Doe’s remaining due-process arguments, vacated the 8 expulsion order, and remanded to ASU to determine the appropriate sanction for a violation 9 of section F-15. Id. at *9. 10 On September 4, 2020, ASU’s vice president of student services wrote a letter to 11 Doe acknowledging that “the Arizona Court of Appeals . . . held that Dr. Rund’s conclusion 12 that you had violated [section F-23] was not supported by substantial evidence and, 13 therefore, constituted an abuse of discretion,” stating that “[t]he Student Rights and 14 Responsibilities (SRR) case file” would be updated to reflect that “Dr. Rund’s finding of a 15 violation of [section F-23] was vacated on appeal,” and clarifying that “[t]he expulsion 16 sanction . . . is withdrawn, effective as of the date of this letter. A copy of this letter will 17 be delivered to the University Registrar notifying that office of the expulsion withdrawal 18 so it may remove any disciplinary notation from your transcript and revise its records to 19 reflect your current status with the University withdrawing the expulsion decision.” (Doc. 20 140-1 at 29-30.) 21 X. This Action 22 On May 29, 2018, Doe filed this action. (Doc. 1.) The initial complaint asserted 23 two federal claims—(1) a violation of Doe’s constitutional rights to due process and equal 24 protection, asserted via 42 U.S.C. § 1983, against the Individual Defendants in their official 25 and individual capacities, and (2) a violation of Title IX against ABOR—as well as various 26 state-law claims (breach of contract, defamation, gross negligence, intentional infliction of 27 emotional distress, and false light). (Id.) Doe sought monetary damages as well as 28 injunctive and declaratory relief against ABOR. (Id. at 71.)

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1 In September 2018, the parties jointly moved to stay these proceedings pending the 2 disposition of Doe’s appeal to the Maricopa County Superior Court. (Doc. 28.) This 3 request was granted. (Doc. 29.) After the Superior Court issued its decision on October 2, 4 2018 (Doc. 40-1 at 1), Doe requested another stay pending his appeal to the Arizona Court 5 of Appeals (Doc. 32). That request was denied. (Doc. 35.) 6 On February 15, 2019, Doe filed his operative pleading, the First Amended 7 Complaint (“FAC”). (Doc. 37.) The only changes of note from the original complaint 8 were (1) to amend the § 1983 claim to include ABOR as a defendant and to make clear that 9 Doe was suing the Individual Defendants only in their individual capacities, and (2) to 10 remove the state-law defamation claim. (Doc. 36-1 at 54, 76.) 11 On December 27, 2019, the Court granted in part Defendants’ motion to dismiss. 12 (Doc. 66.) This order dismissed Doe’s § 1983 claim and his state-law claims for breach of 13 contract, intentional infliction of emotional distress, and false light invasion of privacy. 14 (Id.) 15 On May 17, 2021, the Court granted the individual Defendants’ motion for summary 16 judgment. (Doc. 139.) This order disposed of the state-law gross negligence claim. (Id.) 17 On October 12, 2021, ABOR filed the pending motion for summary judgment. 18 (Doc. 155.) 19 On November 23, 2021, Doe filed a response. (Doc. 189.) 20 On December 23, 2021, ABOR filed a reply. (Doc. 201.) 21 Due to scheduling conflicts, oral argument on the summary judgment motion could 22 not be held until August 17, 2022. (Docs. 203, 204, 205.) In advance of oral argument, 23 the Court issued a tentative ruling. (Doc. 206.) 24 … 25 … 26 … 27 … 28 …

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1 ANALYSIS 2 I. Legal Standards 3 A. Summary Judgment 4 “The court shall grant summary judgment if [a] movant shows that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 6 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 7 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 8 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 9 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 10 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 11 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 12 improper where divergent ultimate inferences may reasonably be drawn from the 13 undisputed facts.” Fresno Motors, 771 F.3d at 1125. 14 A party moving for summary judgment “bears the initial responsibility of informing 15 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 16 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 17 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 18 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 19 production, the moving party must either produce evidence negating an essential element 20 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 21 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 22 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 23 [the] moving party carries its burden of production, the nonmoving party must produce 24 evidence to support its claim or defense.” Id. at 1103. 25 “If the nonmoving party fails to produce enough evidence to create a genuine issue 26 of material fact, the moving party wins the motion for summary judgment.” Id. There is 27 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 28 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not

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1 significantly probative, summary judgment may be granted.” Id. at 249-50. At the same 2 time, the evidence of the non-movant is “to be believed, and all justifiable inferences are 3 to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for summary judgment, the 4 judge must view the evidence presented through the prism of the substantive evidentiary 5 burden.” Id. at 254. Thus, “the trial judge’s summary judgment inquiry as to whether a 6 genuine issue exists will be whether the evidence presented is such that a jury applying that 7 evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at 8 255. 9 B. Title IX 10 Title IX prohibits discrimination on the basis of sex at all educational institutions 11 receiving federal financial assistance. 20 U.S.C. § 1681(a). This prohibition extends to all 12 operations of such an institution. Id. § 1687. “Title IX is enforceable through an implied 13 right of action in which monetary damages are available.” Schwake v. Ariz. Bd. Of Regents, 14 967 F.3d 940, 946 (9th Cir. 2020). Among other things, “Title IX bars the imposition of 15 university discipline where gender is a motivating factor in the decision to discipline.” Id. 16 (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994)). 17 Since 2019, the Ninth Circuit has issued three published decisions in cases, similar 18 to this one, in which a male university student who had been disciplined based on 19 allegations of sexual misconduct by a female student asserted that the school’s disciplinary 20 process violated Title IX because it was tainted by anti-male gender bias. Although all 21 three cases arose in a different procedural posture than this case’s current posture—each 22 evaluated a challenge to the sufficiency of the complaint under Rule 12(b)(6), whereas the 23 question here is whether Doe has adduced sufficient evidence to survive summary 24 judgment—it is nevertheless helpful to begin by summarizing them. 25 First, in Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019), the 26 plaintiffs—three male student-athletes at the University of Oregon—were accused by a 27 female student of forcing her to engage in nonconsensual sex at an off-campus apartment. 28 Id. at 1135. Following a hearing, a university official “found the student athletes

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1 responsible for sexual misconduct because they had violated the Student Conduct Code by 2 ‘engaging in penetration without explicit consent.’ The University suspended the student 3 athletes for at least four years and until the female student is no longer enrolled at the 4 University (but not longer than ten years).” Id. at 1136. Afterward, the plaintiffs sued the 5 school under two different Title IX theories: a “selective enforcement” theory and an 6 “erroneous outcome” theory. Id. at 1137-38.3 The district court dismissed the plaintiffs’ 7 complaint for failure to state a claim and the Ninth Circuit affirmed. As for the “selective 8 enforcement” theory, the court acknowledged that the complaint “recites such facts as the 9 content of the University president’s speech and the campus protests” but held that there 10 was no “plausible link connecting these events and the University’s disciplinary actions to 11 the fact that the student athletes are male.” Id. at 1138. The court also acknowledged that 12 the plaintiffs alleged that “the University disciplines male students for sexual misconduct 13 but never female students” but held that this allegation was, on its own, insufficient to raise 14 a plausible claim of gender bias because “the complaint does not claim that any female 15 University students have been accused of comparable misconduct, and thus fails to allege 16 that similarly situated students—those accused of sexual misconduct—are disciplined 17 unequally.” Id. Finally, as for the “erroneous outcome” theory, the court held that it failed 18 because “[e]ven if the outcome of the administrative conference procedure was erroneous, 19 the complaint is missing any factual allegations that show that sex discrimination was the 20 source of any error.” Id. 21 Next, in Schwake v. Arizona Board of Regents, 967 F.3d 940 (9th Cir. 2020), a male 22 graduate student at ASU was accused by a female graduate student of “engag[ing] in 23 unwanted contact and sexual misconduct with her.” Id. at 943. Schwake’s defense was 24 that “the sexual activity o[n] the night of the accusation was consensual and that the two 25 had a friendly and romantic relationship for several months afterwards.” Id. at 944. 26 Following an investigation, ASU “found [Schwake] responsible for the disciplinary 27 28 3 The plaintiffs also advanced a “deliberate indifference” theory, but the Ninth Circuit deemed it waived. Id. at 1138.

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1 charges” and ordered a suspension as punishment. Id. at 944. Schwake then appealed, but 2 before a hearing could be held, the punishment was changed “from suspension to certain 3 campus restrictions” and an ASU official told Schwake that he was no longer entitled to a 4 hearing and could face additional sanctions, including degree revocation, if he filed his 5 own harassment complaint against his accuser. Id. at 945. In the ensuing Title IX action, 6 Schwake argued that ASU “discriminated against him on the basis of sex during the course 7 of the disciplinary case.” Id. at 943. The district court dismissed Schwake’s complaint for 8 failure to state a claim but the Ninth Circuit reversed, holding that “Schwake plausibly 9 alleged that the University discriminated against him on the basis of sex.” Id. 10 As an initial matter, the court clarified that although several “sister circuits have 11 fashioned doctrinal tests for sex discrimination claims in this context,” including “the so- 12 called ‘erroneous outcome’ and ‘selective enforcement’ tests,” such “doctrinal tests” 13 should be rejected in favor of a “far simpler standard for Title IX claims in this context”— 14 namely, whether “the alleged facts, if true, raise a plausible inference that the university 15 discriminated against the plaintiff on the basis of sex.” Id. at 946-47 (cleaned up). Turning 16 to the sufficiency of Schwake’s complaint, the court grouped his relevant allegations into 17 two categories: “Background Indicia of Sex Discrimination” and “Schwake’s Disciplinary 18 Case.” Id. at 948-51. When discussing the first category, the court did not address whether 19 the “Dear Colleague” letter might provide support for Schwake’s Title IX claim because 20 his complaint did not mention the letter. Id. at 948. Nevertheless, the court noted that 21 Schwake’s complaint contained two other sets of factual allegations intended to establish 22 background indicia of sex discrimination: first, that the DOE initiated an investigation of 23 ASU in 2014 “for possible Title IX violations in the University’s handling of sexual 24 misconduct complaints”; and second, that ASU followed “a pattern of gender-based 25 decisionmaking against male respondents in sexual misconduct disciplinary proceedings,” 26 including “invariably” finding against male respondents “regardless of the evidence or lack 27 thereof.” Id. at 948-49. The court concluded that “it is reasonable to infer that such a 28 federal investigation placed tangible pressure on the University . . . [that] would affect how

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1 the University treated respondents in sexual misconduct disciplinary proceedings on the 2 basis of sex” and that the allegations of gender-based decisionmaking provided further 3 “background indicia of sex discrimination relevant to [Schwake’s] Title IX claim.” Id. 4 Next, the court turned to the details of Schwake’s disciplinary case, clarifying that those 5 details were critical because background indicia of sex discrimination are alone insufficient 6 to support a Title IX claim. Id. at 949 (citing Doe v. Columbia Coll. Chi., 933 F.3d 849, 7 855 (7th Cir. 2019)). The court noted that Schwake had alleged that his case was marred 8 by various “procedural irregularities”—including one ASU official’s4 efforts to “divulge[] 9 confidential and privileged information about Schwake’s disciplinary case” before the case 10 was completed, ASU’s efforts to foreclose Schwake from pursuing an appeal of the 11 modified punishment or filing his own harassment complaint against his accuser, and 12 various aspects of the investigation that were “one-sided”—and held that such procedural 13 irregularities “support an inference of gender bias.” Id. at 949-51.5 Thus, the court 14 concluded that “[c]onsidering the combination of Schwake’s allegations of background 15 indicia of sex discrimination along with the allegations concerning his particular 16 disciplinary case, we conclude that sex discrimination is a plausible explanation for the 17 University’s handling of the sexual misconduct disciplinary case against Schwake. This is 18 sufficient for Schwake’s Title IX claim to proceed beyond the motion to dismiss stage.” 19 Id. at 951. 20 Finally, in Doe v. Regents of the University of California, 23 F.4th 930 (9th Cir. 21 2022), a male graduate student at UCLA (Doe) and a female undergraduate student at 22 4 The court clarified that Schwake could rely on this ASU official’s conduct, even though the official “was not a decisionmaker,” because conduct “by ‘pertinent university 23 officials,’ not just decisionmakers, can support an inference of gender bias.” Id. at 950. 5 24 Schwake repeatedly states that procedural irregularities may give rise to an inference of gender bias. See also id. at 950 (“Like the procedural irregularities some of our sister 25 circuits have considered when faced with allegations of pressure, the violation of confidentiality by those involved in Schwake’s disciplinary case supports an inference of 26 gender bias when considered along with Schwake’s allegations of background indicia of sex discrimination.”); id. (citing Doe v. Columbia Univ., 831 F.3d 46, 59 (2d Cir. 2016), 27 for the proposition that “procedural irregularities in the university’s investigation and handling of a sexual assault complaint raised an inference of bias”); id. at 951 (“Schwake’s 28 allegations of the University’s one-sided investigation support an inference of gender bias.”).

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1 UCLA (Roe) who had been engaged in a “long-term romantic relationship” broke up amid 2 suspicions of infidelity. Id. at 932. Several months later, Roe “lodged a Title IX complaint 3 with the University against Doe, alleging thirteen instances of misconduct, some dating 4 back” more than three years. Id. at 933. Following an investigation, a UCLA 5 representative determined that Doe was responsible for one of the alleged incidents and 6 that his conduct violated various provisions of the university codes of conduct. Id. at 933. 7 Notably, “these violations were not contained in the joint amended Notice of Charges” that 8 had been provided to Doe at the outset of the investigation. Id. The violation finding was 9 later upheld by a UCLA dean and by the school’s internal appeal body and Doe received a 10 two-year suspension sanction. Id. at 934. Afterward, as in this case, Doe brought a Title 11 IX action against the school in federal court and also sought review of the underlying 12 disciplinary decision in state court. Id. at 934. As in this case, a state-court judge 13 eventually reversed the school’s disciplinary finding on the ground “that the evidence did 14 not support the University’s finding” and vacated the suspension. Id. 15 As for the Title IX claim, the district court dismissed it under Rule 12(b)(6) but the 16 Ninth Circuit reversed. The court noted that Doe’s allegations fell “into three categories: 17 (1) allegations of external pressures, (2) allegations of an internal pattern and practice of 18 bias, and (3) allegations of specific instances of bias in his case.” Id. at 936-37. As for the 19 first category (external pressures), Doe’s allegations included both the “Dear Colleague” 20 letter and that UCLA had been audited in 2013 following allegations “about a lack of 21 response to sexual harassment claims.” Id. at 937-38. The court held that it was 22 “reasonable to infer” that such matters “would place ‘tangible pressure’ on the University” 23 and that, “[w]hen taken alongside Doe’s other allegations discussed below, it is plausible 24 that such pressure would affect how the University treated respondents in disciplinary 25 proceedings on the basis of sex, even in 2017.” Id. As for the second category (internal 26 pattern and practice of bias), the court focused on Doe’s allegations that “the respondents 27 in Title IX complaints that UCLA decided to pursue from July 2016 to June 2018 were 28 overwhelmingly male,” that UCLA “doesn’t report by gender the percentage of

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1 respondents found to have violated campus policy,” and that UCLA “has never suspended 2 a female for two years based upon these same circumstances, nor [has it] used the reasoning 3 that two years is a minimum suspension when issuing a suspension to a female.” Id. at 4 938. UCLA argued these allegations were insufficient because “the gender breakdown of 5 complainants and respondents could be attributed to numerous possible factors that are not 6 gender bias” but the court disagreed, holding that such “asymmetrical enforcement 7 allegations . . . can, and here do, lead to a plausible inference of discrimination on the basis 8 of sex, at least when considered in conjunction with the other well-pleaded facts regarding 9 external pressures and specific instances of bias in Doe’s case.” Id. at 938-39. Finally, as 10 for the third category (specific instances of bias in Doe’s case), the court noted that Doe 11 made various “allegations of irregular proceedings,” including that UCLA’s investigator 12 “made findings of violations of policy not included in the Joint Notice or Amended Joint 13 Notice of Charges” and that a state-court judge ultimately “found that the evidence did not 14 support the Regents’ findings,” and held that such irregularities, “while not dispositive on 15 their own, support an inference of gender bias.” Id. at 939-40.6 Thus, the court concluded 16 that, “[t]aken together, Doe’s allegations of external pressures and an internal pattern and 17 practice of bias, along with allegations concerning his particular disciplinary case, give rise 18 to a plausible inference that the University discriminated against Doe on the basis of sex. 19 The fact that sex discrimination is ‘a plausible explanation’ for the University’s handling 20 of the disciplinary case against Doe is sufficient for his Title IX claim to survive a motion 21 to dismiss. While Doe ‘may face problems of proof, and the factfinder might not buy the 22 inferences that he’s selling,’ his Title IX claim makes it past the pleading stage.” Id. at 941 23 (citations omitted). 24 … 25 26 6 See also id. at 940 (“Although the Regents contends that these allegations of procedural irregularities do not suggest that gender was the reason for the supposed errors, 27 this Circuit, as well as the Seventh and Sixth Circuits, have found similar irregularities support an inference of gender bias, particularly when considered in combination with 28 allegations of other specific instances of bias and background indicia of sex discrimination.”).

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1 II. Discussion 2 Doe contends that he has asserted a viable Title IX claim because he was 3 “wrongfully found to have committed the alleged offenses related to sexually engaging an 4 incapacitated person, forcible sexual contact, and alcohol violations and such decisions 5 were motivated by gender bias because Plaintiff was a male athlete.” (Doc. 37 ¶ 253.) 6 Regardless of the precise standard,7 the parties agree that to survive summary judgment, 7 Doe must proffer evidence that would permit a reasonable juror to infer that his sex was a 8 motivating factor in ASU’s handling of his disciplinary proceeding. 9 In the December 2019 order denying ABOR’s motion to dismiss the Title IX claim, 10 the Court found that “[a]lthough this issue presents a close call, . . . the FAC contains just 11 enough case-specific, non-conclusory allegations of gender bias (which, at this stage of the 12 proceedings, the Court must assume to be true) to survive a motion to dismiss.” (Doc. 66 13 at 20.) The Court identified three categories of well-pleaded allegations that, taken as true 14 and in concert, gave it pause: (1) external pressure arising from the “Dear Colleague” letter 15 and OCR’s contemporaneous investigations of ASU (id. at 21-22); (2) statements made by 16 representatives of ASU (id. at 22-23); and (3) an array of irregularities during the 17 disciplinary proceedings. (Id. at 23-24.) 18 Now that the case has progressed past the pleading stage, Doe must proffer evidence 19 that would validate his allegations. Anderson, 477 U.S. at 255. Accordingly, the Court 20 will begin by reassessing the allegations it found compelling at the motion-to-dismiss stage. 21 Next, the Court will discuss new evidence and arguments raised during the summary 22 judgment process. Finally, the Court will weigh the allegations that have been validated 23 by competent evidence and decide whether Doe has carried his burden of establishing the 24 7 Doe asserts that the three-part burden-shifting framework announced in McDonnell 25 Douglas Corp. v. Green, 411 U.S. 792 (1973), should apply. (Doc. 189 at 1.) ABOR responds that “[t]he Ninth Circuit has not adopted the McDonnell Douglas standard in Title 26 IX disciplinary cases.” (Doc. 201 at 2.) It is unnecessary to resolve this dispute here because both parties agree that this Court need only determine “whether there is a contested 27 issue of fact regarding gender bias” (Doc. 189 at 1; Doc. 201 at 1), and McDonnell Douglas itself requires an initial showing that sex was a motivating factor in the school’s 28 investigation and disciplinary decision. Doe v. Univ. of Denver, 1 F.4th 822, 829 (10th Cir. 2021).

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1 existence of a triable issue of fact. 2 A. Issues Raised In The Motion To Dismiss 3 1. External Pressure 4 When deciding the motion to dismiss, the Court noted that “the FAC—like many of 5 the complaints in other recent Title IX cases brought by male university students who 6 contend they were subjected to gender-biased disciplinary proceedings—contains an 7 extensive discussion of the ‘Dear Colleague’ letter that was issued by OCR in 2011.” (Doc. 8 66 at 21.) The Court found that “the letter does not, on its own, get Doe over the plausibility 9 line,” but “‘provides a backdrop that,’ if combined with other evidence, ‘may give rise to 10 a plausible claim.’” (Id., quoting Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).) 11 In the motion for summary judgment, ABOR argues that (1) “the DCL [‘Dear 12 Colleague’ letter] does not use gender-specific language in calling upon schools to address 13 sexual violence”; and (2) “there is no evidence that the DCL unfairly influenced any 14 decision-maker in Doe’s case or resulted in ABOR or ASU policies unfair to male 15 respondents.” (Doc. 155 at 5-6.) Doe responds that “ASU incorporated the DCL into its 16 training and manuals governing the disciplinary process,” that the letter “mandated that 17 ASU prioritize the investigation and resolution of harassment claims and defined ‘sexual 18 harassment’ more broadly than in comparable contexts,” and that the letter also threatened 19 ASU with a loss of federal funding if it did not vigorously investigate and punish sexual 20 misconduct. (Doc. 189 at 15.) In reply, ABOR argues that Doe does “not controvert 21 ABOR’s evidence that the DCL did not cause a gender-biased outcome here.” (Doc. 201 22 at 10.) ABOR also noted that Doe’s cited cases were decided at the motion-to-dismiss 23 stage. (Id. at 10.) 24 The Court agrees with ABOR that the “Dear Colleague” letter, standing alone, does 25 not create a triable issue of fact as to whether ASU’s disciplinary process was infected by 26 gender bias. In general, the “rationale for the letter’s relevance is as follows: the letter 27 applied government pressure and threatened financial punishment in a way that could lead 28 colleges to discriminate against men in their sexual assault adjudication processes.” Doe

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1 v. Coastal Carolina Univ., 522 F. Supp. 3d 173, 179 (D.S.C. 2021). But as ABOR correctly 2 notes, the difficulty with this chain of inferences is that the letter does not explicitly single 3 out men as the perpetrators of sexual violence and women as the victims of sexual violence. 4 The letter uses the words “students” and “he or she” when referring to both victim and 5 perpetrator. (Doc. 155-6 at 2-20.) Additionally, the letter provides statistics concerning 6 the rates at which both female and male college students are the victims of sexual violence. 7 (Id. at 3 [“The statistics on sexual violence are both deeply troubling and a call to action 8 for the nation. A report prepared for the National Institute of Justice found that about 1 in 9 5 women are victims of completed or attempted sexual assault while in college. The report 10 also found that approximately 6.1 percent of males were victims of completed or attempted 11 sexual assault during college.”].) As a result, the “Dear Colleague” letter could only serve 12 as a probative “backdrop” to a gender bias claim if a plaintiff produced university-specific 13 evidence suggesting that university officials interpreted the letter’s mandate to protect 14 “victims” from “perpetrators” as coded language ordering the university to protect 15 “women” from “men.” Otherwise, the letter would simply serve as a directive to 16 aggressively investigate and pursue accusations of sexual misconduct, irrespective of the 17 gender of the accuser and accused. Cf. Bleiler v. Coll. Of Holy Cross, 2013 WL 4714340, 18 *12 (D. Mass. 2013) (bias “toward the rights of reporting complainants” is not the same as 19 bias against male students). 20 This understanding of the “Dear Colleague” letter is consistent with the Ninth 21 Circuit’s recent decision in Doe. As noted, Doe held that it was “reasonable to infer that 22 the [letter], the threat of losing federal funding if sexual misconduct was not vigorously 23 investigated, and the . . . audit regarding [UCLA’s] ‘lack of response to sexual harassment 24 claims’ would place ‘tangible pressure’ on the University.” 23 F.4th at 937. But again, 25 this pressure was to vigorously investigate sexual misconduct claims, which is not the same 26 thing as pressure to discriminate against men accused of sexual misconduct. The Doe court 27 held that it was only when this pressure was “taken alongside Doe’s other allegations” that 28 it could be reasonably viewed as “affect[ing] how the University treated respondents in

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1 disciplinary proceedings on the basis of sex.” Id. Thus, the critical question here is whether 2 Doe has adduced any evidence, apart from the “Dear Colleague” letter itself, from which 3 a reasonable juror could infer that ASU officials interpreted the letter as a directive to 4 discriminate against men during sexual misconduct-related disciplinary proceedings. 5 On this point, the Court noted during the motion-to-dismiss process that “the FAC 6 alleges that, following the issuance of the letter, OCR specifically identified ASU as one 7 of the universities whose Title IX processes were under investigation and sent investigators 8 to the ASU campus to ‘gather information’ about those processes.” (Doc. 66 at 21-22.) 9 The Court determined that these school-specific allegations of external pressure were 10 “additional support for Doe’s claim.” (Id.) 11 In the motion for summary judgment, ABOR argues that “Doe cannot offer any 12 evidence to show the OCR investigations impacted Doe’s disciplinary proceedings or 13 outcome. The OCR never found that ASU violated Title IX, ordered any policy changes, 14 or otherwise influenced ASU’s actions. The evidence is uncontroverted that the relevant 15 decision-makers did not consider, and were not influenced by, the OCR investigations.” 16 (Doc. 155 at 6.) Doe responds that “[t]he University was being investigated by the Office 17 of Civil Rights, a sub-agency of the Department of Education, during Doe’s disciplinary 18 proceedings.” (Doc. 189 at 15.) Doe argues that “a jury can infer the pending investigation 19 unduly influenced the decision-making during Doe’s proceedings.” (Id. at 16.) ABOR 20 replies that it would defy common sense and the law to conclude, as Doe urges the Court 21 to do, that “OCR investigations did not influence the outcome, but . . . the jury can still 22 infer that there was such influence.” (Doc. 201 at 10-11.) 23 Doe cites “Exhibit M” to support his assertion that ASU was investigated by OCR 24 during the pendency of his disciplinary proceedings. Exhibit M, as discussed in the factual 25 background, is a December 1, 2017 letter sent by an ASU representative to an OCR 26 representative. (Doc. 189-2 at 86-98.) The letter summarizes ASU’s investigation of a 27 particular allegation of sexual misconduct, and its inclusion of the comment that “ASU 28 complied with the requirements of Title IX . . . [and] looks forward to a prompt and

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1 favorable resolution of this investigation” suggests there was a contemporaneous OCR 2 investigation into ASU’s Title IX practices. 3 Nevertheless, Exhibit M does not support Doe’s position because it describes 4 OCR’s investigation into ASU’s failure to sanction a male charged with sexually assaulting 5 another male. Although the parties’ names are redacted, contextual clues make readily 6 apparent that both the victim and the perpetrator were male. (Doc. 189-2 at 89 7 [“[Complainant] was working to obtain a medical compassionate withdrawal from some 8 of his courses, and he contacted Claudia Morales . . . . [Complainant] told Ms. Morales of 9 the alleged assault and provided Mr. [Respondent]’s name.”].) It is unclear how OCR’s 10 investigation into ASU’s alleged failure to protect a male victim of sexual assault could 11 support Doe’s theory that “OCR was enforcing . . . a gendered view that saw men as the 12 paradigmatic perpetrators of that violence and heterosexual women as its paradigmatic 13 targets” and that OCR was placing “extraordinary pressure” on ASU “to appear tough on 14 allegations of sexual assault made by women against men, no matter their merit.” (Doc. 15 37 ¶¶ 84, 98.)8 To the contrary, Exhibit M at most suggests ASU could have interpreted 16 the “Dear Colleague” letter as creating pressure to favor accusers during sexual misconduct 17 proceedings, not women to the detriment of men. See also Doe v. Marian Univ., 2019 WL 18 7370404, *12 (E.D. Wisc. 2019) (“There is no evidence by which a reasonable juror could 19 infer that Doe was treated a certain way because of his gender, rather than because he was 20 accused of raping someone.”); Doe v. Fairfax Cty. Sch. Bd., 403 F. Supp. 3d 508, 519 (E.D. 21 Va. 2019) (“[V]igilance in enforcing Title IX, even when it results in bias in favor of 22 victims and against those accused of misconduct, is not evidence of anti-male bias.”). 23 8 24 During oral argument, Doe asserted for the first time that Exhibit M could be viewed as evidence that ASU engaged in disparate gender-based treatment during sexual 25 misconduct investigations because the alleged perpetrator in that case was allowed to remain on campus despite various violations of no-contact orders related to the victim, 26 whereas he was immediately placed on an interim suspension and banned from campus. The Court concludes this argument is forfeited—Doe did not raise this theory in the 27 summary judgment briefing and appears not to have disclosed it to ABOR in any of his disclosures under the Mandatory Initial Discovery Pilot Project (“MIDP”), as he was 28 required to do. Additionally, there is no evidence that OCR inquired into (or made any statements regarding the permissibility of) this particular aspect of the investigation.

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1 These details also distinguish this case from Schwake. There, the plaintiff alleged 2 that “in April 2014 the DOE initiated an investigation of [ASU] for possible Title IX 3 violations in the University’s handling of sexual misconduct complaints” and the Ninth 4 Circuit held that it was “‘entirely plausible’ that such pressure would affect how the 5 University treated respondents in sexual misconduct disciplinary proceedings on the basis 6 of sex.” 967 F.3d at 948. But here, Doe provides no evidence of a 2014 investigation of 7 ASU, let alone a 2014 investigation that was focused on male-against-female sexual 8 violence. Instead, his sole evidence is Exhibit M, which discusses a 2017 investigation of 9 ASU by OCR that was apparently focused on a single incident of male-against-male sexual 10 violence. 11 For these reasons, no reasonable juror could view the “Dear Colleague” letter or the 12 OCR investigation as evidence that ASU’s handling of Doe’s disciplinary proceeding was 13 motivated by gender bias. 14 2. Statements Made By ASU Representatives 15 a. Dr. Hunter’s Statement 16 When deciding the motion to dismiss, the Court noted that “the FAC alleges that an 17 ASU representative referred to Doe’s male gender when explaining why prompt action was 18 needed: ‘When this case first came to the attention of ASU, [Dr. Hunter] indicated that 19 action had to be taken quickly because [Doe] was a male athlete—a collegiate wrestler.’” 20 (Doc. 66 at 22.) However, the Court also noted that another part of the FAC “characterizes 21 [Dr.] Hunter’s email as follows: ‘After receiving the report from ASU’s police department, 22 [Dr. Hunter] wrote in an email to her colleagues that she ‘wanted to figure out what to do 23 with [Doe]’ and ‘clearly we would want to move swiftly’ due to his status as a student- 24 athlete . . . .’” (Id. at 4 n.1.) During oral argument, Doe’s counsel clarified that Dr. Hunter’s 25 email would make clear to any reasonable reader that it was referring to a male athlete. 26 (Id.) Taking Plaintiff’s well-pleaded allegations as true, the Court concluded that Dr. 27 Hunter’s alleged reference to Doe’s gender (“male athlete”) as a reason for prompt action, 28 paired with the fact that Dr. Hunter was alleged to have overseen the university’s

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1 investigation into Doe and sat on the Dean’s Review Committee, supported Doe’s Title IX 2 claim. (Id. at 4 n.1, 22.) 3 In the motion for summary judgment, ABOR argues that “Dr. Hunter did not say 4 she wanted the process to move quickly because Doe is male. . . . Dr. Hunter explained 5 that she referred to him as being a wrestler to ensure that the ASU athletic department was 6 notified . . . as that department has its own procedures relating to student misconduct, which 7 may require an athlete’s removal from his or her respective team during the pendency of 8 an investigation.” (Doc. 155 at 6-7.) Doe does not address this point or make any attempt 9 to refute ABOR’s position in his response. 10 The Court agrees with ABOR that Dr. Hunter’s email does not support Doe’s claim. 11 In the motion to dismiss, the Court was presented with Doe’s summary of Dr. Hunter’s 12 email: “[Dr. Hunter] indicated that action had to be taken quickly because [Doe] was a 13 male athlete—a collegiate wrestler.” (Doc. 66 at 22.) This allegation arguably linked the 14 university’s action (“taken quickly”) with (“because”) Doe’s gender (“male athlete”). The 15 proffered email from Dr. Hunter does not bear out that characterization. 16 The email chain, described above in the statement of facts, arose after Dr. Hunter 17 was forwarded a copy of Roe’s police report by the ASU Police Department. (Doc. 155-1 18 at 7-8.) In the report, the police sergeant referred to both Doe and Witness 1, describing 19 them as “ASU wrestling students,” and explained that only Doe still attended ASU. (Id.) 20 Dr. Hunter’s forwarded message instructed her staff to engage with Roe today “so we can 21 figure out what to do with the male. He is a wrestler, so clearly we would want to move 22 swiftly, but not before we engage [Roe.]” (Id. at 7.) 23 Dr. Hunter’s email cannot plausibly be construed as connecting Doe’s gender with 24 any university action. Dr. Hunter stated that “[h]e is a wrestler, so clearly we would want 25 to move swiftly.” The conjunction “so,” which commonly means “and for this reason; 26 therefore,” connects Doe’s status as a wrestler with Dr. Hunter’s desire to move quickly. 27 Although the Court acknowledges Dr. Hunter’s use of the words “he” and “the male,” they 28 are not syntactically connected to Dr. Hunter’s instruction to move quickly.

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1 More important, ABOR proffers undisputed evidence that ASU’s athletic 2 department has its own procedures relating to student misconduct, which supports ABOR’s 3 contention that Dr. Hunter was preparing for the athletic department’s imminent 4 participation. (Doc. 155-1 at 24 [“I mentioned that he was a wrestler in the email so that 5 [my staff] were aware that there were other entities who were notified and aware that the 6 student was an athlete.”]; Doc. 155-7 at 6 [ASU Student-Athlete Code Of Conduct: “When 7 a student-athlete is determined to have committed a major offense, the [university] will 8 prohibit the student athlete from participation in [athletics].”].) 9 ABOR has carried its burden of proffering evidence negating an essential element 10 of Doe’s claim, but Doe has not carried his responsive burden of proffering evidence to 11 support his claim or defense. Nissan Fire, 210 F.3d at 1102. Nor has Doe provided an 12 opposing view of how Dr. Hunter’s email should be interpreted. Thus, no reasonable juror 13 could view Dr. Hunter’s statement as evidence that ASU’s investigation into Doe was 14 motivated by gender bias. 15 b. Dr. Rund’s Statement 16 When deciding the motion to dismiss, the Court noted that “the FAC identifies 17 another instance where an ASU official [Dr. Rund] made statements that reflect gender 18 bias—this time, implicit bias. . . . [Doe] alleges that [Dr.] Rund based his finding that Roe 19 was ‘incapacitated’ during the sexual encounter in part on the nature of the encounter (a 20 ‘threesome’), which [Dr.] Rund characterized as ‘outrageous behavior’ that could not be 21 the product of a rational, informed decision by an adult. This characterization, according 22 to the FAC, reflects implicit gender bias and antiquated ‘sexual mores’ because [Dr.] Rund 23 ‘did not characterize the men’s decision to engage in three-way sex as ‘outrageous.’” (Doc. 24 66 at 22.) The Court noted that this “may not be Doe’s strongest argument,” because Dr. 25 Rund “had no reason to opine on the reasonableness of the male participants’ behavior [as] 26 the narrow issue before him was whether Roe was incapacitated.” (Id. at 23.) Even so, the 27 Court found that “at the pleading stage and when viewed in the light most favorable to Doe, 28 it provides a modest degree of additional support for his Title IX claim.” (Id.)

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1 In the motion for summary judgment, ABOR argues that “Dr. Rund’s comment was 2 based on the evidence presented to him, and cannot be contorted to suggest or imply gender 3 bias. Further, even assuming Dr. Rund’s use of ‘outrageous’ was a comment on sexual 4 mores (it was not), Doe (again) cannot show the characterization has anything to do with 5 the gender of the participants in the sexual activity.” (Doc. 155 at 8-9.) Doe responds9 6 that “the University’s witness testified that a reasonable person exercising free will could 7 decide to participate in a threesome, and Roe admitted she had capacity10. . . . A reasonable 8 jury can infer gender bias based on Rund’s finding that a female was incapacitated due to 9 her ‘outrageous behavior,’ when there is no reason to believe her behavior was unusual 10 other than her sex.” (Doc. 189 at 9.) In reply, ABOR offers a lengthy rebuttal of Doe’s 11 argument that the Arizona Court of Appeals’ decision should be entitled to some preclusive 12 effect and also argues that “even if Doe were to show . . . that Dr. Rund favored Roe, Doe 13 has no evidence of gender bias rather than, for example, sympathy for sexual assault 14 victims regardless of sex.” (Doc. 201 at 7.) 15 In the tentative order issued before oral argument, the Court stated that a reasonable 16 juror could construe Dr. Rund’s “outrageous” comment as some evidence of gender bias. 17 In large part, this was because the phrase “outrageous” seemed to appear out of nowhere 18 and be untethered to the surrounding analysis in Dr. Rund’s letter concerning Doe’s 19 knowledge of Roe’s level of intoxication. Given this understanding of the facts, although 20 the Court acknowledged that ABOR’s proffered interpretation of the “outrageous” 21 comment—that Dr. Rund was merely stating that Doe should have viewed Roe’s evolution 22 from refusing to have sex with Doe to participating in a threesome with Doe and Witness 23 9 Throughout his response to the motion for summary judgment, Doe asserts that certain issues discussed or decided in the Arizona Court of Appeals’ decision are “law of 24 the case and cannot be disputed.” (Doc. 189 at 5.) Doe’s argument about Dr. Rund thus mostly nods to the appellate court’s analysis of purportedly relevant issues. Although the 25 Court addresses Doe’s “law of the case” theory below, for purposes of this issue, the Court addresses Doe’s argument on its own merits. 26 10 Doe cites paragraphs 12 and 25 in the Arizona Court of Appeals’ decision for the 27 proposition that Roe “admitted” that she had capacity. Paragraph 12 sets forth the standard for incapacity. 2019 WL 7174525 at *3. Paragraph 25 states that the proffered evidence 28 does not “support Rund’s conclusion that [Roe] lacked the capacity to say no.” Id. at *5. Nowhere does the decision state that Roe admitted she had capacity.

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1 1 as “outrageous” behavior suggesting her incapacitation—was reasonable, a reasonable 2 juror could also reach a contrary interpretation and construe Dr. Rund’s comment as a 3 suggestion that a woman would only engage in a threesome if incapacitated. The tentative 4 order then cited various cases suggesting that when university representatives make 5 comments during disciplinary proceedings that reflect outdated or biased assumptions 6 about the sexual preferences of men and women, such comments may serve as evidence 7 that the proceedings were tainted by gender bias in violation of Title IX. See, e.g., Doe v. 8 Marymount Univ., 297 F. Supp. 3d 573, 585-86 (E.D. Va. 2018) (administrator’s 9 suggestion that male student may have been aroused by unwanted touching could be 10 viewed as evidence of “outdated and discriminatory views of gender and sexuality” that 11 “would have naturally infected the outcome of [the plaintiff’s] Title IX disciplinary 12 proceedings” and thus “create[d] an inference of gender discrimination in Marymount’s 13 disciplinary proceedings”); Doe v. Washington & Lee Univ., 2021 WL 1520001, *13-14 14 (W.D. Va. 2021) (hearing panel’s “differing treatment of Doe’s and Roe’s testimony” 15 regarding their openness to certain sexual acts “shows that gender bias impacted Doe’s 16 disciplinary proceeding” because it suggests the “panel’s determination of responsibility 17 was predicated on biased assumptions regarding the sexual preferences of men and 18 women”); Doe, 23 F.4th at 939-40 (university official’s comment that the male respondent 19 should have invited the female complainant into his office when she showed up angry and 20 unannounced “support[ed] an inference of gender bias” because it “at the very least raise[d] 21 the question of whether, if the gender roles were reversed, [the official] would have made 22 the same recommendation to a female approached by her angry, male ex-fiancé when he 23 showed up unannounced to confront her at her place of employment”). 24 Upon reflection, and after carefully considering the points raised during oral 25 argument, the Court changes course and concludes that a reasonable juror could not 26 construe Dr. Rund’s “outrageous” comment as evidence of gender bias. During oral 27 argument, ABOR’s counsel identified additional (and undisputed) evidence that explains 28 the genesis of the “outrageous” comment. That evidence shows that the Association of

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1 Title IX Administrators (“ATIXA”) has proposed certain best-practice guidelines for 2 universities to follow when conducting investigations. (Doc. 155-1 at 55.) Among other 3 things, the ATIXA guidelines include guidance for “determining whether someone is 4 incapacitated.” (Id.) That guidance calls for an assessment of whether the person 5 “displayed outrageous or unusual behavior,” and the “ATIXA materials” define the term 6 “outrageous” by identifying “context[ual] clues to determine whether or not someone is 7 incapacitated.” (Id.) Given this additional context, it would not be reasonable for a juror 8 to construe Dr. Rund’s “outrageous” comment as some sort of Victorian commentary on 9 whether a woman would ever voluntarily engage in the sexual act at issue in this case. 10 Instead, the only reasonable interpretation of this comment is as an evaluation of Roe’s 11 level of intoxication and capacity to consent through the lens of the ATIXA guidelines. 12 3. Procedural Irregularities 13 As noted, the Ninth Circuit has repeatedly held that procedural irregularities during 14 a disciplinary proceeding can give rise to an inference of gender bias. See, e.g., Schwake, 15 967 F.3d at 950 (“[P]rocedural irregularities . . . support[] an inference of gender bias when 16 considered along with Schwake’s allegations of background indicia of sex 17 discrimination.”); Doe, 23 F.4th at 940 (“[I]rregularities in Doe’s proceedings . . . , while 18 not dispositive on their own, support an inference of gender bias.”). When deciding the 19 motion to dismiss, the Court noted that “the FAC alleges an array of irregularities during 20 the disciplinary proceedings.” (Doc. 66 at 23.) The Court found that “[a]lthough these 21 alleged procedural errors may not, standing alone, serve as plausible evidence of gender 22 bias in a Title IX case . . . taken together, these allegations are sufficient to survive a 23 motion to dismiss.” (Id. at 24.) 24 a. Davis’s Promise To Bring “Charges” 25 The first procedural irregularity discussed in the December 2019 order was the 26 FAC’s allegation that “the lead investigator promised Roe she would attempt to bring 27 charges against Doe at the very outset of the investigation, before even interviewing Doe 28 or obtaining corroborating information.” (Doc. 66 at 23.)

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1 In the motion for summary judgment, ABOR contends this statement does not 2 qualify as a procedural irregularity because, under the Student Disciplinary Procedures (the 3 “Procedures”), a “charge” is simply a notice provided to the respondent that an accusation 4 has been made and an investigation has begun. (Doc. 155 at 9 [citing Doc. 155-2 at 64; 5 Doc. 155-7 at 26].) Thus, ABOR contends that a “charge” does not suggest Doe was 6 accused of a violation in the same way a prosecutor’s “charge” of a crime generally must 7 be founded on probable cause. (Id. at 9.) Doe does not directly respond to ABOR’s 8 explanation. He does, however, mention Davis’s alleged failure to investigate before 9 charging him when presenting a new procedural-irregularity argument related to his interim 10 suspension. (Doc. 189 at 11 [“There was no basis for the interim suspension . . . . [T]he 11 University immediately charged Doe with sexual misconduct for having sex with a person 12 who was incapacitated and placed him on interim suspension, even though Davis had not 13 interviewed Doe, collected corroborating information to confirm Roe’s allegations, and 14 Roe admitted she had capacity during the sex act.”].) 15 Because Doe does not dispute ABOR’s explanation that a “charge” is not a 16 determination of guilt, but rather only ASU’s declaration that an investigation has begun, 17 no reasonable juror could view Davis’s promise to “charge” Doe as a procedural 18 irregularity. In later sections of this order, the Court discusses Doe’s new procedural- 19 irregularity argument related to the interim suspension. 20 b. Davis’s Statements About Her Role 21 The second procedural irregularity discussed in the December 2019 order was the 22 FAC’s allegation that “the lead investigator made conflicting statements to Doe and Roe 23 about the investigator’s role.” (Doc. 66 at 23.) 24 In the motion for summary judgment, ABOR argues that “Doe severely 25 mischaracterized” Davis’s statement to the parties. (Doc. 155 at 9.) ABOR asserts that 26 “Davis told Roe and Doe the same thing: she did not have subpoena power and would rely 27 on them to provide documentation and other information they wanted considered.” (Id. at 28 9.) ABOR disputes Doe’s “notion that Ms. Davis allowed Roe to control the investigation

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1 or dissuaded Doe from providing evidence,” notes that “Ms. Davis repeatedly asked Doe 2 for information and documents,” and asserts that Doe, in fact, was uncooperative. (Id. at 3 9-10.) In response, Doe argues that “the University acted as Roe’s advocate” and that “a 4 reasonable jury can infer gender bias based on the University’s self-described advocacy for 5 the female, a role never afforded a male.” (Doc. 189 at 13.) Relevant to the narrower 6 allegation addressed at the motion-to-dismiss stage,11 Doe asserts that Davis described 7 herself to Doe as a “neutral third-party investigator,” “half-heartedly” asked for 8 information, but also claimed that she would gather information herself. (Id. at 13.) Doe 9 argues that, in contrast, Davis told Roe that she was “her partner” and asked Roe to locate 10 specific information because “the onus was on her to prove her case.” (Id.) In reply, ABOR 11 accuses Doe of raising his university-as-advocate theory “for the first time” and focuses on 12 rebutting that argument without relitigating the issue of Davis’s description of her role. 13 (Doc. 201 at 9.) 14 The Court finds no evidence of a genuine dispute about Davis’s characterization of 15 her own role to Roe and Doe. Davis told Roe “it’s going to be up to you to provide us with 16 whatever information you feel is relevant; provide us with names of witnesses; provide 17 your own statements. It’s going to have to be, unfortunately, on your shoulders to 18 determine what it is that you feel like you want me to know.” (Doc. 155-7 at 56.) She 19 clarified the sort of evidence Roe could provide: “It’s going to be up to you to provide 20 photos or text messages or receipts or social media posts or whatever have you that you 21 feel would be relevant for me to know.” (Id.) She explained to Roe that “at the end of the 22 investigation I’ll prepare a report and you will know exactly what I’ve been able to collect 23 because throughout this process my job is just to be that neutral third-party investigator, 24 not the decider.” (Id. at 63-64.) 25 Davis told Doe that she would handle ASU’s investigation, acting as “a neutral, 26 11 27 Although Doe now raises a broader argument, this portion of the order only addresses the well-pleaded allegations found compelling at the motion-to-dismiss stage. 28 Here, it is the FAC’s allegation that “the lead investigator made conflicting statements to Doe and Roe about the investigator’s role.” (Doc. 66 at 23.)

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1 third party investigator,” and that her job was to “collect information, anything I can get, 2 by speaking to people, by collecting documentation that may be available, and then I just 3 compile a report.” (Doc. 155-8 at 7.) Davis explained that she would not ask Doe to make 4 a statement, that he did not have to answer any questions, and in fact he could choose “not 5 to come in at all at any point.” (Id. at 16-17.) But Davis warned Doe that the Dean’s 6 Review Committee would determine whether Doe violated the Code “based on whatever 7 (information) is available to them. So if there is a wealth of information from [Roe’s] side, 8 that will be all that is considered. And so you respond in the way that you feel is best that 9 your attorney will advise you. . . . You can come back next week and still not say anything, 10 and that’s okay. . . . Just know that there would be an absence of information, and so when 11 a decision is made, it would wind up being only from one side that information would be 12 had.” (Id. at 17.) She concluded that “[w]hat I would encourage you to note is, like we 13 talked about earlier, I can’t subpoena information, so down here is an option for you to 14 provide the names of any potential witnesses, people you want me to speak with, people 15 you feel may have information that would be relevant to our case. Also, for you to provide 16 any evidence you may have. So if you have receipts or phone logs or text messages or 17 Snapchats or anything you feel that may help substantiate your statement, you can provide 18 those to me. Okay?” (Id. at 19.) 19 In short, when speaking to both Roe and Doe, Davis described herself as a “neutral 20 third-party investigator” who was compiling a report that would go to decisionmakers. 21 Davis told both Roe and Doe that they would be responsible for building their own cases 22 because she did not have the power to subpoena evidence, and Davis gave nearly identical 23 examples (“photos or text messages or receipts or social media posts” to Roe, “receipts or 24 phone logs or text messages or Snapchats” to Doe) of the sort of evidence they might wish 25 to submit. Although Davis presented the explanation more carefully to Doe to emphasize 26 that he should “respond [i.e., present evidence] in the way that you feel is best that your 27 attorney will advise you,” she was clear that if Doe did not advocate for himself, the Dean’s 28 Review Committee would only be presented with evidence provided by Roe.

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1 Without prejudging Doe’s broader argument that Davis comported herself as an 2 advocate for Roe in practice, there is no evidence12 that she made “conflicting statements 3 to Doe and Roe about the investigator’s role.” Thus, no reasonable juror could find a 4 procedural irregularity arising from this narrow aspect of the disciplinary proceeding. 5 c. Davis’s Statement About Roe’s “New Evidence” And Dr. 6 Hightower’s Signature Of Doe’s Expulsion Letter 7 The third procedural irregularity discussed in the December 2019 order was the 8 FAC’s allegation that “the lead investigator falsely told Doe that one of Roe’s written 9 submissions did not contain any new evidence.” (Doc. 66 at 23.) The fourth procedural 10 irregularity was the FAC’s allegation that “the Committee violated its own procedural rules 11 by issuing the expulsion letter without considering Doe’s response to the new evidence 12 discussed in Roe’s final written submission.” (Id. at 23.) 13 In the motion for summary judgment, ABOR contends that Doe’s argument about 14 Roe’s submission reflects “disagreement between Doe and Davis as to what constitutes 15 ‘new evidence.’ Davis testified that she did not consider repetitive or clarifying 16 information from Roe that did not contain a ‘new fact’ to be new evidence.” (Doc. 155 at 17 10.) ABOR also argues that although Dr. Hightower signed an initial expulsion letter 18 before receiving Doe’s new submission, she signed a second expulsion letter after she 19 considered the submission and found that it did not change her decision. (Id. at 11.) Doe 20 responds that “a reasonable jury can infer gender bias based on the University’s failure to 21 12 Doe quotes a statement allegedly made to Roe by Davis: “my job [is] to be like a 22 detective that you’re working with and to gather evidence.” (Doc. 189 at 13.) Doe characterizes this statement as evidence that Davis was casting herself as a “partner” to 23 Roe rather than a neutral fact finder. But the quotation misstates Davis’s choice of words and omits significant context. Davis actually said, “So my job in this process is to be a 24 neutral third-party investigator. I am not the decider. It’s my job to be just like the detective that you’re working with and to gather information.” (Doc. 155-7 at 59-60.) The 25 actual sequence of Davis’s conversation with Roe made clear that Davis was comparing herself to Roe’s actual police detective liaison, “the detective,” whom they had discussed 26 seconds earlier, and explaining that she had an investigatory, not a deciding, role. Even if Davis had indeed said, “like a detective that you’re working with,” it strains credulity to 27 say this casts her as a “partner” when Davis had described herself as a “neutral third-party investigator” to Roe exactly two sentences earlier. Nothing about Davis’s presentation to 28 Roe portrayed Davis as a “partner” to her, at least no more so than Davis’s presentation to Doe portrayed Davis as a partner to him.

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1 give the male accused an opportunity to review and comment on evidence and granting the 2 female accuser th[at] right, and by failing to address obvious and relevant issues in the draft 3 report before finding a male guilty of violating the Code.” (Doc. 189 at 15.) More 4 specifically, Doe asserts that Davis “refused” to allow him to review Roe’s new submission 5 of December 11, 2016 until his lawyer intervened and that the submission contained new 6 evidence despite Davis’s assurance otherwise. (Id. at 14.) Doe also asserts that his 7 supplemental letter “was not seriously considered (and certainly no substantive effort was 8 made to examine or corroborate the information) as the University issued its disciplinary 9 decision the next day.” (Id.) In reply, ABOR argues that Dr. Hightower received and 10 reviewed all of Doe’s responses before issuing her final decision and that Doe cites no 11 evidence supporting the idea that his response was not “seriously considered.” (Doc. 201 12 at 10.) 13 Doe really raises three procedural allegations here: (1) Davis refused to let Doe 14 review Roe’s December 11, 2016 comments until his attorney became involved, whereas 15 Roe was always able to review new evidence; (2) Davis lied or otherwise misrepresented 16 the fact that there was “substantive, new information presented by Roe” on December 11, 17 2016; and (3) the University did not take Doe’s new submission seriously. By contrast, 18 Doe does not seem to argue that Dr. Hightower’s re-signing of the expulsion letter would 19 be procedurally defective if she had taken his new submission seriously. 20 Doe has the better side of some, but not all, of these arguments. As noted in the 21 Background section of this order, Davis met with Roe on December 11, 2016 to review 22 one of the letters written by Doe’s counsel. During this meeting, Roe made a variety of 23 statements about the underlying incident.13 24 The Court agrees with Doe’s contention that a reasonable juror could construe these 25 statements as new, substantive information. For example, Roe repeatedly stated in her 26 27 13 The tentative ruling incorrectly stated that Roe’s December 11, 2016 comments were not part of the record. During oral argument, ABOR’s counsel clarified that Roe’s 28 December 11, 2016 comments are embedded in the final version of the investigative report. The analysis here has been updated accordingly.

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1 December 11, 2016 comments that she was “too intoxicated” during the sexual encounter 2 to be “aware of what was going on” and did “not remember what happened.” (Doc. 155-1 3 at 94, 104.) However, the police report from the Tempe Police Department reflects that 4 during an interview on April 2, 2016 (i.e., the day after the incident), Roe did not claim to 5 have been too intoxicated to remember the details of what occurred. To the contrary, the 6 police report states that Roe provided a detailed description of the sexual encounter. (Doc. 7 189-2 at 44-45.) Similarly, during Roe’s initial meeting with Davis on September 19, 2016, 8 Roe provided another detailed recollection of the encounter. (Doc. 155-1 at 66.) And 9 again, during Roe’s subsequent meeting with Davis on October 27, 2016, Roe was again 10 able to recall and recount various details about the sexual encounter itself. (Id. at 67-69.) 11 Roe also stated on December 11, 2016 that “she did not say ‘stop’ because she was 12 too intoxicated.” (Id. at 99.) However, the police report from the Tempe Police 13 Department states that Roe “told them to stop because it was hurting.” (Doc. 189-2 at 49.) 14 There is evidence that Roe also made statements to this effect during her October 27, 2016 15 meeting with Davis. (Doc. 155-1 at 68 [“[Roe] stated [Doe] and [Witness 1] did not stop 16 after she said no . . . .”].) 17 Finally, Roe stated on December 11, 2016 that “she was not aware that a photo was 18 taken.” (Doc. 155-1 at 98.) However, during her April 2016 interview with the Tempe 19 Police Department, Roe reported that “she saw a camera flash and realized that [Witness 20 1] was taking pictures of her.” (Doc. 189-2 at 49. See also id. at 45 [“[Roe] said at some 21 point during the incident, she saw flashes from a camera, and noticed [Witness 1] was 22 taking photos of the incident with a cell phone.”].) Similarly, during Roe’s initial meeting 23 with Davis on September 19, 2016, Roe stated that “[d]uring the encounter, she stated to 24 see flashes going off. She asked what it was and was told not to worry about it. She then 25 responded that she did not want to be recorded.” (Doc. 155-1 at 66.) And during her 26 subsequent meeting with Davis on October 27, 2016, Roe stated that “the camera was 27 brought out after she said no.” (Id. at 68.) 28 Given this background, a reasonable juror could conclude that it was procedurally

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1 irregular for Davis not to share Roe’s December 11, 2016 comments with Doe before 2 submitting her final investigative report to the Committee and that it was also procedurally 3 irregular for Davis to assure Doe’s counsel that Roe “did not offer any new evidence” 4 during the December 11, 2016 interview (Doc. 189-2 at 63). The former was procedurally 5 irregular because, under § C(5) of the Procedures, “[b]efore concluding the investigation, 6 and upon request, the Dean of Students will provide the parties with an opportunity to 7 respond to all investigative materials.” (Doc. 155-2 at 64.) The latter was procedurally 8 irregular because, for the reasons discussed above, a reasonable juror could conclude that 9 Roe did, in fact, provide important new evidence during the December 11, 2016 interview, 10 by changing her account on several key points. 11 In contrast, ABOR presents undisputed evidence that Dr. Hightower seriously 12 considered Doe’s December 21, 2016 submission (which addressed the new evidence that 13 Roe provided on December 11, 2016) and decided to expel him anyway. (Doc. 155-1 at 14 42.) Doe cites no evidence to show that Hightower failed to seriously consider his 15 submission. The Court observes that thoughtful decisions are sometimes made quickly, 16 just as thoughtless decisions are sometimes made slowly. Speed, without more, is not 17 evidence of a lack of deliberation (although it might be different if Doe had evidence that 18 Dr. Hightower affirmed the decision 30 seconds after receiving a 100-page submission). 19 Nor does Doe argue that Dr. Hightower was administratively bound to consider new 20 evidence for a certain amount of time before ruling on it or to formally remark on new 21 evidence in her revised expulsion letter. There is thus no genuine dispute about whether 22 Dr. Hightower considered Doe’s new submission before expelling him. Although Dr. 23 Hightower’s decision to reject Doe’s arguments may have been substantively flawed—as 24 evidenced by the ultimate reversal of the expulsion decision—there was no irregularity in 25 the process that Dr. Hightower followed to reach her decision. 26 For these reasons, Doe has adduced sufficient evidence to corroborate some, but not 27 all, of the allegations in the FAC pertaining to procedural irregularities that occurred during 28 the December 2016 portion of the disciplinary proceeding.

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1 d. ASU’s Failure To Obtain Key Evidence 2 The fifth procedural irregularity discussed in the December 2019 order was the 3 FAC’s allegation that “ASU representatives failed during various stages of the proceedings 4 to take steps to obtain key evidence—among other things, they could have required Roe to 5 obtain the cellphone video footage from the Tempe Police Department and simply chose 6 not to do so.” (Doc. 66 at 23.) 7 In the motion for summary judgment, ABOR explains that (1) the video was 8 unavailable to Davis and Roe and Davis could not compel Roe to obtain it, (2) Dr. Allen 9 properly refused to order Roe to cooperate in Doe’s pursuit of the video, and (3) Davis 10 sought to contact Witness 1 and the individual who drove Roe home after the incident but 11 was obstructed by Witness 1 and could not reach the driver. (Doc. 155 at 10-11.) Doe 12 does not respond.14 13 Given Doe’s failure to pursue this aspect of his claim at summary judgment, no 14 reasonable juror could conclude that ASU’s failure to obtain cellphone footage from the 15 Tempe Police Department or testimony from Witness 1 or Roe’s driver constituted a 16 procedural irregularity. 17 e. UHB’s Refusal To Hear Toxicology Evidence 18 The sixth procedural irregularity discussed in the December 2019 order was the 19 FAC’s allegation that “the UHB refused to consider Doe’s proffer of the testimony his 20 alcohol expert would have provided.” (Doc. 66 at 23.) 21 In the motion for summary judgment, ABOR argues that Doe’s counsel made a 22 strategic decision not to call his toxicology expert and instead offered a lengthy 23 presentation by Ms. Nannetti, his sexual assault expert. (Doc. 155 at 12 n.6.) ABOR 24 asserts that the UHB’s decision to reject Doe’s proffer of a toxicology report “after the 25 record closed, and well after the deadline in the Procedures,” and with no opportunity for 26 ASU to cross-examine the expert or offer a rebuttal, is not evidence of gender bias. (Id. at 27 14 28 Doe does assert, as part of his broader argument that Davis acted as an advocate for Roe, that Davis failed to interview certain individuals. (Doc. 189 at 14.)

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1 11.) Doe does not respond. 2 Given Doe’s failure to pursue this aspect of his claim at summary judgment, no 3 reasonable juror could conclude that the UHB’s refusal to consider the report of Doe’s 4 toxicologist constituted a procedural irregularity. 5 f. Failure To Disclose Sex-By-Force Theory 6 The seventh procedural irregularity discussed in the December 2019 order was the 7 FAC’s allegation that “the UHB sustained the sexual misconduct finding under an 8 ‘impermissible force’ theory, but this theory wasn’t properly disclosed to Doe before the 9 hearing and conflicted with Roe’s statements to the police and with the uncontradicted 10 testimony of Doe’s expert.” (Doc. 66 at 23.) 11 In the motion for summary judgment, ABOR argues that “the notice regarding the 12 initiation of the investigation and Hightower’s decision gave Doe notice of the potential 13 for force to be considered, quoting in full the range of sexual misconduct subject to the 14 Code.” (Doc. 155 at 12.) ABOR also points out that Doe “specifically addressed the issue 15 of force in communications with Ms. Davis and during the UHB hearing.” (Id. at 12.) 16 Finally, ABOR asserts that the final expulsion decision did not hinge on force, as Dr. Rund 17 also found that Roe was incapacitated and unable to consent to the sex acts. (Id. at 12-13.) 18 In response, Doe argues that “the University found Doe guilty of . . . sex by force without 19 informing Doe, investigating the charge, or presenting the issue at trial.” (Doc. 189 at 13.) 20 He asserts that “a reasonable jury can infer the University wanted to convict males at any 21 cost based on the University’s failure to inform Doe he was charged with sex by force, the 22 failure to investigate sex by force, the failure to inform Doe he needed to produce evidence 23 by force charge, and the failure to support the charge at the hearing.” (Id. at 12-13.) 24 Specifically, he argues that the information supporting the interim suspension makes no 25 mention of sex by force, that Davis did not tell him that she was investigating a claim of 26 sex by force (and thus he did not produce evidence to defeat such a claim), and that 27 testimony at the UHB hearing makes clear sex by force was not an issue but was 28 “mentioned only in passing.” (Id. at 12.) ABOR replies that “force was always at issue,

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1 Doe addressed it during the investigation and the UHB hearing, force was not the primary 2 reason for his expulsion, and Doe cannot link the force finding to gender bias.” (Doc. 201 3 at 8.) 4 A reasonable juror could conclude that the UHB’s decision to find Doe responsible 5 under a sex-by-force theory constituted a procedural irregularity. Doe, 23 F.4th at 940 6 (where UCLA’s investigator “made findings of violations of policy not included in the 7 Joint Notice or Amended Joint Notice of Charges,” this qualified as an “irregularit[y]”). 8 It is undisputed that the Code requires ASU to notify students of charges against them. 9 (Doc. 155-2 at 64.) The letter sent by Dr. Hunter on September 21, 2016 provided the 10 following summary of the allegations against Doe: “[O]n or around April 2, 2016, you 11 provided alcohol to a minor female student of ASU. After she became heavily intoxicated, 12 you and another male took her to a room in your off-campus house where you engaged in 13 oral and vaginal consent without her consent. Reportedly, a camera was used to recover 14 the sexual acts and the female did not consent to the recording.” (Doc. 189-2 at 16, 15 emphasis added.) The letter explained that, “[i]f true, the behavior stated above would be 16 in violation of the [ABOR] Student Code of Conduct, pertinent parts of which are stated 17 below.” (Id.) The letter then quoted the provisions of the Code (sections F-15, F-23, and 18 F-25) addressing alcohol, sexual misconduct, and surreptitious recording. (Id. at 16-17.) 19 Although the full definition of section F-23, which was provided in the letter, identifies 20 “sexual acts perpetrated . . . by force” as one of the many forms of prohibited conduct, a 21 reasonable juror could conclude that a passing citation to a broadly defined category of 22 offenses does not qualify as an “explanation of the charges which have been made,” as 23 required by the Procedures. (Doc. 155-2 at 64.) This is particularly true because the 24 summary of the charges provided at the outset of the letter only accused Doe of engaging 25 in sexual acts “without her consent” and did not make any separate mention of sex by force. 26 Cf. N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (explaining that the interpretive 27 canon of expressio unius est exclusio alterius applies when circumstances support a 28 sensible inference that the statutory term left out must have been meant to be excluded).

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1 Similarly, during later meetings with Doe, Davis made comments that can be reasonably 2 construed as suggesting the sexual-misconduct investigation was only focused on 3 incapacitation and the lack of consent, not on the presence of force. (Doc. 155-8 at 32 4 [Davis, agreeing that “what you were looking for [is] incapacitation”].) 5 Finally, although ABOR correctly notes that Dr. Rund did not rely solely on the sex- 6 by-force finding to uphold the expulsion (Doc. 155 at 12-13), this is at most an argument 7 about whether the procedural irregularity was harmless, not whether an irregularity 8 occurred. During oral argument, ABOR argued that harmless procedural irregularities can 9 be disregarded because “if it’s harmless, it can’t be evidence of discrimination on the basis 10 of sex. It can’t have motivated the final outcome. He couldn’t have been expelled because 11 of it. Because if it’s harmless, that means it doesn’t satisfy the clear standard under Title 12 IX.” The Court disagrees. The Ninth Circuit has repeatedly stated that procedural 13 irregularities may support an inference of gender bias in a Title IX proceeding. Schwake, 14 967 F.3d at 950 (“[P]rocedural irregularities . . . support[] an inference of gender bias when 15 considered along with Schwake’s allegations of background indicia of sex 16 discrimination.”); Doe, 23 F.4th at 940 (“[I]rregularities in Doe’s proceedings . . . , while 17 not dispositive on their own, support an inference of gender bias.”); id. at 941 (“[A]t some 18 point an accumulation of procedural irregularities all disfavoring a male respondent begins 19 to look like a biased proceeding . . . .”). Those cases do not suggest that a Title IX plaintiff 20 must go further and show that a specific irregularity was the cause of an erroneous outcome. 21 At any rate, ABOR did not move for summary judgment on causation, but only on the issue 22 of whether “Doe can “come forward with actual evidence of gender bias” (Doc. 155 at 18), 23 and for the reasons stated above, Doe has identified several procedural irregularities in his 24 proceeding that—at least if coupled with other evidence of bias—could lead a reasonable 25 juror to conclude that the proceeding was infected with bias. 26 … 27 … 28 …

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1 B. Issues Raised In The Motion For Summary Judgment 2 1. The Arizona Court Of Appeals’ Decision 3 In response to the motion for summary judgment, Doe advances various arguments 4 based on the Arizona Court of Appeals’ 2019 decision overturning his expulsion. Doe 5 makes three overarching points: (1) “a jury can infer gender bias based on the University’s 6 baseless finding that Doe engaged in sex by force” (Doc. 189 at 3-5); (2) “gender bias can 7 be inferred by the University’s abuse of discretion” (id. at 5); and (3) “the Court of Appeals 8 identified specific facts that a jury can use to infer sex bias under Title IX, and those facts 9 are law of the case” (id. at 5-10). 10 The Court views the first and second arguments as a matched set: Doe believes the 11 appellate court’s determination that Dr. Rund “convicted” him with insufficient evidence 12 can, itself, be some evidence to support his overall argument that “the University wanted 13 to convict males at any cost.” (Id. at 12.) The third argument is that “the appellate court’s 14 factual and legal findings are law of the case and cannot be disputed” and “a jury can infer 15 sex bias based on . . . ten issues identified by the Court of Appeals.” (Id. at 5, 7.) Doe 16 asserts that “the issues resolved in the Court of Appeals’ Order are entitled to preclusive 17 effect” and “the University cannot relitigate the factual and legal issues decided by the state 18 court, including factual determinations necessary to find there was no evidence to support 19 a finding of incapacitation or that Doe engaged in sex by force. . . . In short, if the 20 University is arguing that there is evidence to support a finding of sex by force or Roe was 21 incapacitated, it cannot do so.” (Id. at 7.) Doe then proceeds to identify ten “issues 22 identified by the Court of Appeals.” (Id. at 7.) In some instances, these “issues” appear 23 to be Doe’s understanding of evidentiary findings made by the appellate court from which, 24 in Doe’s view, a juror might infer gender bias. In some instances, the “issues” are simply 25 quotations from the appellate decision, which Doe combines with his own arguments and 26 blends into “law of the case.” 27 In reply, ABOR makes the following arguments: (1) Doe waived his ability to rely 28 on the Arizona Court of Appeals’ decision by not mentioning it in his disclosures pursuant

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1 to the District of Arizona’s Mandatory Initial Discovery Pilot Project (“MIDP”); (2) Doe 2 mischaracterizes the decision; (3) the decision does not have preclusive effect; (4) the 3 decision is not evidence that can go to the jury; and (5) the decision does not raise a fact 4 issue on gender bias because that was not at issue in the state-court proceedings. (Doc. 5 201 at 2-7.) 6 With the benefit of oral argument, and in light of other changes to the tentative 7 ruling, the Court finds it necessary to discuss the relevance of the Arizona Court of 8 Appeals’ decision in more detail than it did in the tentative ruling. In a nutshell, the Court 9 concludes that the fact of reversal helps support Doe’s contention that his disciplinary 10 proceeding was infected by irregularities that may, in concert with other evidence, give rise 11 to an inference of gender bias. The clearest support for this conclusion comes from the 12 Ninth Circuit’s recent Doe decision, which identified “the state court’s ruling . . . in the 13 writ proceeding . . . that the evidence did not support the Regents’ findings” as one of the 14 “procedural irregularities” that could “support an inference of gender bias, particularly 15 when considered in combination with allegations of other specific instances of bias and 16 background indicia of sex discrimination.” 23 F.4th at 940. That is essentially what 17 happened here—although Dr. Hightower, the UHB, and Dr. Rund all determined that Doe 18 had committed sexual misconduct in violation of section F-23, the appellate court held that 19 no reasonable person could have reached that conclusion. Doe, 2019 WL 7174525 at *6- 20 7 (“[W]e conclude the evidence at the hearing could not lead a reasonable mind to conclude 21 ASU proved Complainant was unable to make ‘informed, rational judgments’ on the night 22 in question. . . . We [also] conclude the finding that Respondent engaged in sex with 23 Complainant by force was not supported by substantial evidence because a reasonable 24 mind could not reach that conclusion based on the evidence.”). Although the Court agrees 25 with ABOR (Doc. 201 at 7) that the fact of reversal does not, in itself, mean that Doe must 26 prevail on his Title IX claim or even survive summary judgment—there must be other 27 evidence from which a reasonable juror could conclude this irregularity was indicative of 28 gender bias—it would be reasonable for a juror to find irregularity based on the reversal.

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1 Another of ABOR’s arguments is that the appellate decision is not evidence that can 2 go to the jury. (Doc. 201 at 6-7.) Without taking any position on the admissibility of the 3 appellate decision itself, the fact that ASU’s sexual misconduct findings and expulsion 4 decision were reversed based on insufficient evidence can be established through other 5 pieces of evidence in the record apart from the appellate decision. (See, e.g., Doc. 140-1 6 at 29-30 [September 4, 2020 letter to Doe from ASU’s vice president of student services, 7 acknowledging that “the Arizona Court of Appeals . . . held that Dr. Rund’s conclusion 8 that you had violated [section F-23] was not supported by substantial evidence . . . .”].) 9 Finally, ABOR raises objections based on waiver and late disclosure. (Doc. 201 at 10 3-4.) Although those objections may be meritorious when applied to some of the other 11 alleged procedural irregularities discussed in Doe’s summary judgment brief, they lack 12 merit with respect to the appellate decision. Doe expressly identified the appellate decision 13 in the portion of his MIDP disclosures calling for disclosure of the “facts and legal theories 14 relevant to claims.” (Doc. 155-5 at 100-01 [“Rund never made a reasonable connection 15 between [Roe’s] behavior and an inability to make rational, informed decisions—the 16 standard for incapacitation articulated by ASU at the hearing—and never addressed, let 17 alone explained, the evidence showing that Doe was coherent, communicative, and logical 18 during the encounter. He also failed to address an essential element of the charge: that Doe 19 knew or should have known [Roe] was incapacitated. Rund nonetheless expelled Doe from 20 Arizona’s public educational institutions . . . . On December 24, 2019, the Arizona Court 21 of Appeals issued a Memorandum Decision finding that Rund’s determination that Doe 22 had sex with by force and was incapacitated were not supported by substantial evidence.”].) 23 Although Doe may not have disclosed his intention to rely on the appellate decision for 24 law-of-the-case purposes, he clearly disclosed his intention to rely on the decision to 25 support his broader argument that the underlying proceeding was flawed and irregular. 26 Given these conclusions, it is unnecessary at this juncture to delve into whether the 27 appellate decision has some sort of law-of-the-case or preclusive effect. Taken solely as 28 evidence of a procedural irregularity, it provides further support for Doe’s Title IX claim.

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1 2. Additional Assertions Of Procedural Irregularity 2 Doe’s summary judgment brief identifies three additional alleged procedural 3 irregularities that were not addressed at the motion-to-dismiss stage: (1) Davis’s acting as 4 an advocate for Roe in practice, by failing to interview certain witnesses Doe had 5 identified, directing Roe to an ASU-sponsored advocate to whom Doe was not given 6 access, and promising to represent Roe if there was an appeal; (2) the placement of Doe on 7 an interim suspension during the pendency of the investigation; and (3) ASU’s failure to 8 address inconsistencies in Roe’s testimony. (Doc. 189 at 11-14.) In reply, ABOR argues 9 that (1) Doe never properly disclosed these theories; and (2) alternatively, these theories 10 fail on the merits. (Doc. 201 at 8-10.) 11 Although the tentative ruling sought to address the merits of each additional theory, 12 ABOR explained during oral argument why any analysis of the merits should be reserved 13 until after ABOR’s late-disclosure allegations are resolved. Upon reflection, the Court 14 agrees. The Court also concludes that, because it has already determined that Doe has 15 validated the existence of several properly disclosed irregularities, it is unnecessary at this 16 stage to determine whether Doe has established the existence of even more irregularities. 17 As discussed below, the summary judgment analysis fundamentally turns on whether Doe 18 has proffered other evidence that could lead a reasonable juror to conclude these 19 irregularities were indicative of gender bias (as opposed to pro-complainant bias or mere 20 incompetence or mistake). 21 3. Doe’s Proffered Expert Opinions 22 In response to the motion for summary judgment, Doe identifies the reports of two 23 of his experts, Cindi Nannetti and Dr. Lance Kaufman. (Doc. 189 at 16-17 & n.9.) 24 Nannetti’s report (Doc. 161-1) addresses the “Start By Believing” campaign, which 25 purportedly influenced Doe’s disciplinary proceeding. (Doc. 189 at 16.) Dr. Kaufman’s 26 report (Doc. 159-1) identifies statistical evidence that allegedly “raise[s] a fair inference of 27 anti-male bias” in ASU’s disciplinary proceedings. (Id. at 17.) Although the parties have 28 also brought dueling Daubert motions to exclude these and other experts (Docs. 158, 159,

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1 161, 164-65), which will be addressed in due course, the Court now addresses Nannetti’s 2 and Dr. Kaufman’s opinions insofar as they are proffered as summary judgment evidence. 3 a. The “Start By Believing” Campaign 4 In the motion for summary judgment, ABOR argues that Nannetti’s opinions do 5 “not support gender bias, no less intentional gender bias.” (Doc. 155 at 13.) First, ABOR 6 explains that Nannetti’s criticisms are “confine[d] . . . to Ms. Davis’ investigations,” but 7 “Dr. Rund’s decision was not based solely on the information Ms. Davis gathered . . . , 8 [and] [t]here is no evidence Dr. Rund’s decisions were based on anything but the evidence 9 presented by the parties during and after the UHB hearing.” (Id. at 14.) Second, ABOR 10 asserts that it is “demonstrably false” that the SRR or Davis followed the Start By Believing 11 campaign when carrying out the investigation. (Id. at 14.) Third, ABOR argues that 12 Nannetti’s opinion is that Start By Believing caused Davis to be biased in favor of Roe as 13 a victim, not against Doe as a man, and pro-victim bias is not gender bias. (Id. at 15.) 14 Fourth, ABOR asserts that although Nannetti “purports to measure Ms. Davis’s 15 investigation against the standards set forth by [ATIXA],” those standards are irrelevant 16 because non-compliance would at most show that the investigation was imperfect, as 17 opposed to being motivated by Doe’s gender. (Id. at 15.) In response, Doe argues that 18 “ASU was operating under the [Start By Believing] campaign during the disciplinary 19 proceedings” and the campaign “assumes the accuser’s accusations are true and acts 20 accordingly.” (Doc. 189 at 16.) Doe points to a proclamation “announcing the University’s 21 adherence to the policy” that was “signed by the University president and the Title IX 22 coordinator.” (Id.) Doe argues that although ABOR “claims the campaign is gender 23 neutral because it is victim-focused . . . the number of female accusers is higher than male 24 accusers resulting in a strong bias in favor of female complainants and male accused.” (Id.) 25 Moreover, Doe asserts that “law enforcement” has repudiated the Start By Believing 26 campaign and considers it an improper investigative technique. (Id.) “Based on this, Doe 27 argues that a reasonable juror can find that the [Start By Believing] campaign influenced 28 the decision to suspend a male accused without evidence.” (Id.) In reply, ABOR argues

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1 that “Doe mischaracterizes ABOR’s position with respect to [Start By Believing]. ABOR 2 does not contend that ASU rejected [Start By Believing]. Rather, the evidence establishes 3 that [Start By Believing] was followed only by the ASU Police Department, which 4 conducts criminal investigations, not by SRR, which investigates alleged violations of the 5 Code pursuant to the Procedures. Doe has no contrary evidence.” (Doc. 201 at 11.) 6 Doe has proffered no evidence from which a reasonable juror could conclude that 7 the Start By Believing campaign influenced his disciplinary proceeding. The sole piece of 8 evidence that is even tangential to Start By Believing is the April 4 Proclamation. (Doc. 9 189-2 at 100.) The Proclamation was signed by ASU’s President, Executive Vice 10 President, and the ASU Chief of Police. (Id.) It was only attested to by ASU’s Title IX 11 Coordinator Preudhomme. Attestation is defined by Black’s Law Dictionary as meaning 12 “bear witness . . . affirm to be true or genuine; to authenticate by signing as a witness.” 13 Attest, Black’s Law Dictionary (11th ed. 2019). This makes logical sense because the 14 Proclamation’s text has no direct impact on ASU’s Title IX system and requires no 15 commitment from Preudhomme. 16 Rather, the Proclamation states that the Start By Believing campaign is “designed 17 to improve responses of friends, family members, and community professions, so they can 18 help victims to access supportive resources and engage the criminal justice system.” (Id.) 19 According to the Proclamation, this is necessary because victims are more likely to disclose 20 sexual assault to a friend or family member, and when those loved ones respond with doubt, 21 the victim experiences additional negative effects. (Id.) Consequently, the Proclamation 22 stated that ASU was committing itself to celebrate April 4th of each year as “Start By 23 Believing Day” to show its commitment to awareness of, prevention of, and response to 24 sexual violence. (Id.) Notably, the Proclamation makes no demands of any ASU 25 institution beyond a commitment to publicize the Start By Believing campaign.15 It places 26 27 15 ABOR concedes that the ASU Police Department “followed” the Start By Believing campaign (Doc. 201 at 11), and Preudhomme testified that “the proclamation supported 28 the campaign issued by the ASU Police Department encouraging individuals to report crime.” (Doc. 155-6 at 37.)

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1 the onus on “loved ones” to start by believing victims of sexual violence rather than 2 doubting them, in an effort to ensure that those victims will be connected with supportive 3 resources and the criminal justice system. It also mentions that both women and men are 4 victims of sexual violence. No reasonable juror could believe that a Proclamation that 5 encourages friends and family to “start by believing” is evidence that ASU’s Title IX 6 department “adhered” to the policy, especially given that Preudhomme did not formally 7 sign it, let alone commit to follow it. 8 Other pieces of evidence identified by Nannetti to prove ASU’s purported adherence 9 to Start By Believing are that Davis appeared to believe Roe’s version of events and that 10 Dr. Hunter stated, “I do have a strong belief in what she does say, yes” at the appeal hearing. 11 (Doc. 161-1 at 11.) No reasonable juror could believe that use of the word “belief,” or the 12 act of believing, is evidence of adherence to the Start By Believing campaign. 13 By contrast, ABOR points to undisputed evidence that “SRR’s investigators were 14 specifically instructed not to apply the [Start By Believing] philosophy in investigating 15 allegations of sexual misconduct.” (Doc. 155-6 at 37-40 [Preudhomme testifying that SRR 16 did not follow the policy]; Doc. 155-10 at 96 [Associate Dean Hicks informing 17 Preudhomme by email in 2015 that “ASU is participating in this proclamation, however as 18 investigators we are not to participate as we are neutral fact finders and are tasked with 19 investigating”].) Preudhomme also testified that “the only information out there about the 20 Start By Believing campaign in connection with ASU is the proclamation, which, as we’ve 21 gone over, relate[s] to the criminal justice system.” (Id. at 40.) 22 Accordingly, no reasonable juror could conclude that the Start By Believing 23 campaign influenced ASU’s investigation of Doe.16 24 … 25 … 26 16 Doe does not seek to avoid summary judgment by proffering other aspects of 27 Nannetti’s report unrelated to her opinions regarding the Start By Believing campaign. Accordingly, the analysis here is limited to the Start By Believing campaign. In the 28 forthcoming order resolving the parties’ Daubert motions, the Court will address ABOR’s challenges to other components of Nannetti’s report.

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1 b. Statistical Anomalies 2 During the discovery process, ABOR produced spreadsheets that summarized the 3 outcomes of disciplinary proceedings between 2012 and 2017 in which ASU students were 4 alleged to have violated section F-23 of the Code (sexual misconduct) and/or section F-15 5 of the Code (alcohol). (Doc. 159-1 at 5-6. See also Doc. 159 at 4.) For the cases involving 6 alleged violations of section F-23, the spreadsheets contained sixteen data fields, including 7 the gender of the respondent, the gender of the complainant, the Dean of Students’ decision, 8 the sanction imposed, the UHB’s decision, and the university vice president’s decision. 9 (Id.) The spreadsheets did not, however, provide a narrative description of the underlying 10 conduct that gave rise to the charge. (Id.) 11 One of Doe’s experts, Dr. Kaufman, performed four statistical analyses of the 12 information contained in these spreadsheets to determine whether there were “statistical 13 disparities in the treatment of males.” (Doc. 159-1 at 5.) First, Dr. Kaufman analyzed the 14 overall rate at which ASU students were found “guilty” in a proceeding involving an 15 alleged violation of section F-23 and/or section F-15. He determined that male respondents 16 were found “guilty” in 66% of such cases (3,927 out of 5,960) while female respondents 17 were found “guilty” in 62% of such cases (1,650 out of 2,661). (Id. at 10-11.) (Id.) Dr. 18 Kaufman also asserted, without providing any calculations or data, that “[t]his gender 19 disparity remains significant when performing a peer-group analysis of F-15 and F-23 20 charges separately.” (Id.) Second, Dr. Kaufman focused on the subset of cases in which 21 an ASU student was found “guilty” of a section F-23 violation and a “significant” sanction 22 (i.e., “expulsions and degree revocations”) was imposed. (Id. at 11-12.) He determined 23 that male respondents received a significant sanction in 50% of such cases (81 out of 163) 24 while female respondents received a significant sanction in 0% of such cases (0 out of 10). 25 (Id.) Third, Dr. Kaufman focused on the subset of cases in which an ASU student was 26 charged only with a section F-15 violation and some form of sanction, beyond a warning, 27 was imposed. (Id. at 12-13.) He determined that male respondents received a sanction 28 beyond a warning in 63% of such cases (747 out of 1,191) while female respondents

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1 received a sanction beyond a warning in 58% of such cases (421 out of 722). (Id.) Fourth, 2 Dr. Kaufman returned to the subset of cases in which an ASU student was found “guilty” 3 of a section F-23 violation and a “significant” sanction was imposed. (Id. at 13-14.) He 4 determined that a significant sanction was imposed in 0% of such cases in which the 5 complainant was male (0 out of 11) while a significant sanction was imposed in 29% of 6 such cases in which the complainant was female (28 out of 98). (Id.) According to Dr. 7 Kaufman, all four variations are statistically significant. (Id. at 10-14.) 8 In its motion for summary judgment, ABOR argues that, to the extent Doe is 9 offering Dr. Kaufman’s statistical analyses to show “that Doe was treated more harshly 10 than similarly situated females,” this attempt fails because Dr. Kaufman did “not account 11 for the wide variation of behavior that can be charged as an F(23) violation.” (Doc. 155 at 12 16-17.) ABOR contends that because section F-23 encompasses “a variety of actions 13 ranging from ‘[s]exual violence’ and forced ‘physical sexual acts’ to sexual harassment 14 and other unwanted and non-consensual conduct including non-contact offenses such as 15 indecent exposure, voyeurism, or non-consensual photographing,” it was incumbent upon 16 Dr. Kaufman to consider “the type of misconduct that resulted in the disciplinary 17 sanctions.” (Id.) ABOR also notes that it provided information “detailing the type of 18 conduct that resulted in sexual misconduct charges” to Doe during the discovery process, 19 but Doe “elected not to provide this information to his expert.” (Id. at 17 n.9.) ABOR 20 concludes that, because Dr. Kaufman failed to incorporate this information into his 21 analysis, his opinions are “irrelevant” and do not “evidence or support even an inference 22 of gender bias.” (Id. at 17.) 23 ABOR elaborates on some of these points in its Daubert motion related to Dr. 24 Kaufman. (Doc. 159.) There, ABOR contends that Dr. Kaufman’s analysis is flawed 25 because he “erroneously and impermissibly assumes that all F(23) sexual misconduct 26 violations are comparable” and that “[i]n view of the wide range of actions that fall within 27 the definition of ‘sexual misconduct,’ a valid (reliable) comparison of sanctions given to 28 male and female students found responsible for violating F-23 of the Code cannot be made

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1 without specific information as to the type of conduct at issue in each instance.” (Id. at 6.) 2 As an example, ABOR notes that two of the cases in which female respondents were found 3 responsible for section F-23 violations but received only “mild” sanctions involved conduct 4 (walking naked in public, sending unwanted sexual communications to a faculty mentor) 5 that is not terribly serious but still qualifies as sexual misconduct under section F-23, 6 whereas two of the cases in which male respondents were found responsible for section F- 7 23 violations and received “severe” sanctions involved much more serious iterations of 8 sexual misconduct under section F-23 (holding down the victim while “vaginally sexually 9 assault[ing] her,” having sexual intercourse with a passed-out female victim who was 10 covered in blood and vomit). (Id. at 8-9.) ABOR contends that, “as the allegations in the 11 examples cited above illustrate, cases involving female respondents are not necessarily 12 (and in this case not remotely) comparable to cases involving male respondents,” and “Dr. 13 Kaufman’s failure to consider the specific conduct at issue renders his sweeping assertions 14 useless.” (Id.) 15 In response to the summary judgment motion, Doe argues that Dr. Kaufman “found 16 four statistical anomalies that raise a fair inference of anti-male bias.” (Doc. 189 at 17.) 17 Doe asserts that because these anomalies cannot be explained by nondiscriminatory 18 possibilities, “a jury can infer sex bias based on evidence of a statistical disparity in the 19 treatment of men and women by the University.” (Id.) Additionally, in response to 20 ABOR’s Daubert motion, Doe identifies various reasons why Dr. Kaufman’s statistical 21 analysis remains relevant despite his failure to consider the individual factual 22 circumstances of each case involving an alleged violation of section F-23, including that 23 (1) “ABOR does not and cannot provide any support for its allegation that the various 24 conduct constituting ‘sexual misconduct’ under its own Code is somehow ‘less’ serious 25 than other harms”; (2) ABOR does not “endeavor to articulate which forms of conduct are 26 allegedly less serious in the eyes of the University or that the ‘seriousness’ of the crimes is 27 not evenly distributed by gender”; and (3) any “similarly situated” threshold has been 28 satisfied here because all of the cases that Dr. Kaufman considered involved violations of

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1 section F-23, “the same sexual misconduct violation under the Code,” and any argument 2 related to dissimilarity based on factual circumstances is an issue “for cross-examination, 3 not exclusion.” (Doc. 188 at 8-9.) 4 In its summary judgment reply, ABOR argues that Doe’s response “does not mask 5 the fact that Dr. Kaufman did not address other possible reasons for the alleged anomalies, 6 even confessing in his report that they could be caused by ‘non-gender factors’ . . . . 7 [S]tatistics are useful only when they show disparate treatment for ‘substantially similar 8 charges’ [and] Kaufman, however, admitted that he did not consider the underlying 9 conduct in analyzing the outcomes of disciplinary proceedings.” (Doc. 201 at 11.) And in 10 its Daubert reply, ABOR elaborates that by “treating all alleged F-23 violations as 11 equivalent, Dr. Kaufman ensured that his opinions would not be relevant to this matter. 12 His conclusion that females are disciplined at a slightly lower rate for F-23 violations in 13 general, even if accurate, simply ignores the relevant question for a discrimination claim, 14 which is whether similarly situated female students received different treatment than Doe.” 15 (Doc. 196 at 4.) 16 Although it presents a close call, the Court agrees with Doe that Dr. Kaufman’s 17 statistical evidence is relevant and creates a genuine issue of material fact about whether 18 ASU’s Title IX disciplinary process was infected by gender bias. The Ninth Circuit has 19 repeatedly held that statistics suggesting that a university’s Title IX disciplinary process is 20 biased against male respondents can support an inference of gender bias in an individual 21 Title IX case. Schwake, 967 F.3d at 949 (plaintiff’s “allegations of a pattern of gender- 22 based decisionmaking against male respondents in sexual misconduct disciplinary 23 proceedings” were “relevant” and bolstered plausibility of Title IX claim); Doe, 23 F.4th 24 at 938 (“Doe alleges that the respondents in Title IX complaints that UCLA decided to 25 pursue from July 2016 to June 2018 were overwhelmingly male (citing specific statistics 26 for each of those years) . . . . Doe also alleges that the University ‘has never suspended a 27 female for two years based upon these same circumstances’ . . . . As we noted in Schwake, 28 these are precisely the type of non-conclusory, relevant factual allegations that the district

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1 court may not freely ignore.”). ABOR does not dispute that statistics may, in general, be 2 used to support a Title IX claim but argues that Dr. Kaufman’s statistics are too flawed to 3 qualify as relevant, admissible statistical evidence. 4 The starting point when evaluating ABOR’s challenge is the Ninth Circuit’s 5 decision in Austin. There, the plaintiffs sought to support their Title IX claim with evidence 6 that “the University disciplines male students for sexual misconduct but never female 7 students.” 925 F.3d at 1138. However, the plaintiffs did “not claim that any female 8 University students have been accused of comparable misconduct, and thus fail[ed] to 9 allege that similarly situated students—those accused of sexual misconduct—are 10 disciplined unequally.” Id. Given this “lack of parallelism,” the Ninth Circuit held that 11 the plaintiffs had not established “that the male students were treated any differently than 12 similarly situated students based on sex.” Id. 13 Here, Doe has attempted to do what the plaintiffs in Austin failed to do— 14 demonstrate that female students “accused of sexual misconduct” are disciplined less 15 harshly than male students “accused of sexual misconduct.” And on its face, Dr. 16 Kaufman’s statistical analysis suggests that a gender-based disparity exists in this area. 17 Among other things, Dr. Kaufman found that zero out of the 10 female ASU students found 18 to have committed a “sexual misconduct” violation under section F-23 between 2012 and 19 2017 (that is, 0%) received a severe sanction of suspension or expulsion but 81 of the 163 20 male ASU students found to have committed such a violation (that is, 50%) received a 21 severe sanction. 22 ABOR’s response is that Dr. Kaufman’s analysis is incomplete and misleading 23 because he did not analyze the facts of the underlying cases to determine whether the 24 instances of “sexual misconduct” that gave rise to the violations were similar to each 25 other—and, without such a factual comparison, Dr. Kaufman’s statistics cannot be proof 26 that similarly situated students were treated differently based on their gender. ABOR also 27 asserted, during oral argument, that footnote six of Austin shows that the Ninth Circuit 28 requires this sort of factual comparison.

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1 On the one hand, ABOR’s argument has intuitive appeal. Under section F-23, the 2 term “sexual misconduct” is defined as follows: 3 a. Sexual violence and other non-consensual sexual contact—actual or attempted physical sexual acts perpetrated against a person by force or 4 without consent; or b. Sexual harassment—unwelcome conduct of a sexual 5 nature that is sufficiently severe or pervasive as to create an intimidating, hostile, or offensive environment; or c. Other unwanted or non-consensual 6 sexual conduct including but not limited to indecent exposure, sexual 7 exploitation or voyeurism, or non-consensual photographing or audio- recording or video-recording or another in a state of full or partial undress or 8 while engaged in sexual activity, or publishing or disseminating such 9 materials.

10 (Doc. 189-2 at 16-17.) As ABOR correctly notes, this definition is quite broad and 11 encompasses a wide range of conduct, from forcible sexual violence to indecent exposure. 12 It is understandable why an ASU administrator might, for reasons unrelated to gender bias, 13 impose a severe punishment against a male ASU student found responsible for the former 14 but impose a less-severe punishment against a female ASU student found responsible for 15 the latter. 16 On the other hand, the Court does not lightly disregard the passage in Austin that 17 female students “accused of sexual misconduct” would qualify as “similarly situated 18 students” who had “been accused of comparable misconduct” in a case involving a Title 19 IX claim brought by a male student. 925 F.3d at 1138. Those are the precise circumstances 20 here. Although Austin admittedly does not explain how the University of Oregon defined 21 the term “sexual misconduct” under its disciplinary code,17 and thus it is possible the 22 17 In Austin, the Ninth Circuit stated that the University of Oregon Student Conduct 23 Code “defined ‘sexual misconduct’ to include penetration without explicit consent” but noted that the Code’s definition encompassed “[o]ther types of sexual activity . . . not at 24 issue here.” 925 F.3d at 1135. The court also provided a hyperlink to Oregon’s Code. Id. A review of the materials on the hyperlinked website suggests that the current version of 25 Oregon’s Code, like ASU’s, includes an expansive definition of “sexual misconduct” that is not limited to nonconsensual/forced sex but also encompasses non-physical offenses 26 such as, for example, “verbal . . . conduct of a sexual nature that is unwelcome and sufficiently severe or pervasive that interferes with work or access to educational benefits 27 and opportunities because it has created an intimidating, hostile, or degrading environment.” See University of Oregon Policy III.01.01, available at 28 https://investigations.uoregon.edu/sites/investigations1.uoregon.edu/files/iii.01.01_studen t_conduct_code_-_10_dec_2018_-_4_march_2019.pdf

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1 definition there was narrower than ASU’s definition, Austin still supports the conclusion 2 that Dr. Kaufman’s statistics qualify, at a minimum, as relevant evidence that a reasonable 3 juror could construe as supporting Doe’s Title IX claim. Nor does footnote six in Austin 4 suggest that a more searching factual inquiry is required before this sort of statistical 5 comparison becomes relevant. In footnote six, the Ninth Circuit simply noted that “the 6 only incident cited in the complaint involving an ‘accused’ female student—threatening 7 another student with a knife—did not constitute sexual misconduct.” Id. at 1138 n.6. Here, 8 ABOR does not argue that any of the female-comparator cases on which Dr. Kaufman 9 relief involved conduct that fell outside section F-23’s definition of “sexual misconduct.” 10 The tentative ruling also suggested that University of Denver supports the 11 conclusion that Dr. Kaufman’s statistics are relevant. For the reasons explained by 12 ABOR’s counsel during oral argument, the Court is now persuaded that University of 13 Denver is distinguishable because the statistics in that case were proffered for a different 14 purpose. 15 Nevertheless, the Court stands by the conclusion in the tentative ruling that at least 16 one component of Dr. Kaufman’s statistical evidence—the evidence showing that male 17 respondents found to have committed a “sexual misconduct” violation under section F-23 18 received a severe sanction in 50% of cases but female respondents received a severe 19 sanction in 0% of such cases—is relevant and admissible and raises an inference of gender 20 bias. Cf. Doe, 23 F.4th at 938 (characterizing the plaintiff’s allegation that UCLA “has 21 never suspended a female for two years based upon these same circumstances” as one of 22 several “facts which demonstrate an internal pattern of gender-based decisionmaking 23 against male respondents”). To the extent ABOR argues this statistic is misleading because 24 it involves a comparison of episodes of “sexual misconduct” that may be factually 25 dissimilar, and thus does not involve a comparison of similarly situated male and female 26 students, this is an argument as to the weight of the evidence that ABOR can pursue at trial 27 through cross-examination. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“Shaky 28 but admissible evidence is to be attacked by cross examination, contrary evidence, and

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1 attention to the burden of proof, not exclusion.”). Cf. Earl v. Nielsen Media Rsch., Inc., 2 658 F.3d 1108, 1113-16 (9th Cir. 2011) (explaining, in the context of an employment- 3 discrimination claim where the plaintiff sought to establish “a triable issue of pretext 4 through comparative evidence that the employer treated younger but otherwise similarly 5 situated employees more favorably than the plaintiff,” that the similarly-situated 6 requirement “is not an unyielding, inflexible requirement . . . because one can always find 7 distinctions in . . . the nature of the alleged transgressions” and that whether the violations 8 were of “comparable seriousness” was a question of fact) (citations omitted). 9 Although it arises from outside the Title IX context, the Court views Currier v. 10 United Technologies Corp., 393 F.3d 246 (1st Cir. 2004), as a decision supporting this 11 conclusion. There, a 61-year-old worker who had been terminated during a reduction-in- 12 force (“RIF”) brought an age discrimination claim. Id. at 248. In support of this claim, the 13 plaintiff “presented the testimony of an expert statistician, Dr. Sat Gupta, who concluded 14 that the RIF disproportionately affected older employees. Gupta reported that the average 15 age of the five employees who were laid off was 53, while the average age of those retained 16 was 45.” Id. at 250. The defense moved to exclude this statistical evidence on various 17 grounds, including that “Gupta’s analysis failed to consider whether any factors other than 18 age and grade—such as the company’s need for particular skill sets, salaries or longevity— 19 accounted for the differing treatment among employees” and that “because Gupta’s 20 statistics were not drawn from the experience of ‘similarly situated’ employees, his 21 conclusions lacked any probative value and were thus both irrelevant and highly 22 prejudicial.” Id. at 250. The defense also identified evidence “that one of the other 23 employees laid off, who also was 61 years old at the time, had a history of performance 24 issues,” which “challenged the validity of Gupta’s statistical conclusion of age bias.” Id at 25 252. The district court overruled the defense’s relevance objections and the First Circuit 26 affirmed, explaining that “[w]e see no abuse of discretion in the district court’s decision to 27 view this weakness in Gupta’s analysis as a matter of weight rather than admissibility and 28 thus properly a subject of argument and jury judgment.” Id. The court elaborated: “Here,

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1 the information on which the statistical analysis was based was presented, and there is no 2 claim that the statistics were an inaccurate representation of what the expert analyzed. 3 Accuracy, of course, is not the whole story. As we have noted, various factors blunted the 4 significance of Gupta’s conclusions and, indeed, we think his analysis skittered near the 5 line of inadmissibility. The jury was not, however, uninformed. Challenges to the 6 probative value of Gupta’s analysis were amply brought to the jury’s attention. In these 7 circumstances, we find no abuse of discretion, and thus no reversible error, in the district 8 court’s decision to admit Gupta’s statistics and allow the jury to assess their significance.” 9 Id. at 253. 10 Here, too, a reasonable juror could conclude from the starkly different outcomes in 11 cases involving proven instances of “sexual misconduct” in violation of section F-23— 12 where 50% of the male respondents receive a severe sanction but 0% of the female 13 respondents receive a severe sanction—that the process is infected by gender bias. There 14 may, of course, be bias-free explanations for these outcomes. Perhaps all of the cases 15 involving female respondents involved mild forms of sexual misconduct while the cases 16 involving the imposition of severe sanctions against male respondents involved more 17 serious forms of sexual misconduct. Nevertheless, there is no evidence that the distribution 18 of violations is actually skewed along gender lines in this manner—ABOR simply 19 identifies two cases involving relatively mild violations by female respondents and two 20 cases involving relatively serious violations by male respondents and speculates that the 21 remaining cases may follow the same pattern. Additionally, this is not a situation where 22 Dr. Kaufman made up his own definition of “sexual misconduct” in an attempt to create 23 some sort of cherry-picked statistic. The Court finds it persuasive that section F-23’s 24 definition of “sexual misconduct” is a definition both created and used by ASU, which 25 suggests that ASU has already decided it unifies a population of similarly situated 26 respondents in some material respect. Under these circumstances, Dr. Kaufman’s failure 27 to delve into the factual circumstances of each case involving an adjudicated “sexual 28 misconduct” violation under section F-23 is not a flaw that renders his statistical analysis

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1 irrelevant and inadmissible. Instead, it is an omission that goes to the weight of the 2 evidence and can be explored through cross-examination. Given this determination, it is 3 unnecessary at this juncture to resolve ABOR’s objections to other aspects of Dr. 4 Kaufman’s statistical analysis, which will be addressed in due course during the Daubert 5 process. 6 C. Conclusion 7 Doe’s proffered evidence could lead a reasonable juror not only to conclude that his 8 disciplinary proceeding was marred by an array of procedural irregularities, but also that 9 ASU’s disciplinary process generates statistical anomalies that raise an inference of gender 10 bias. Given this backdrop, it is unnecessary to decide whether, as Doe argues (Doc. 189 at 11 3), the existence of “perplexing” procedural irregularities is alone enough to survive 12 summary judgment in a Title IX case. As the Tenth Circuit concluded in University of 13 Denver, “[w]hile a one-sided investigation, standing alone, might only raise a reasonable 14 inference of anti-complainant bias, where there is a one-sided investigation plus some 15 evidence that sex may have played a role in a school’s disciplinary decision, it should be 16 up to a jury to determine whether the school’s bias was based on a protected trait or merely 17 a non-protected trait that breaks down across gender lines.” 1 F.4th at 836. Such is the 18 case here. 19 Accordingly, 20 IT IS ORDERED that ABOR’s motion for summary judgment (Doc. 155) is 21 denied. 22 Dated this 30th day of August, 2022. 23 24 25 26 27 28

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