Z.J. v. Vanderbilt Univ. (355 F. Supp. 3d 646, 2018)

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Z.J., a former Vanderbilt University ("Vanderbilt") student, brings this action arising out of Vanderbilt's investigation of an accusation of sexual misconduct made against him by a female student ("A.H.") following an alleged physical incident that occurred after a St. Patrick's Day tailgate party. After the investigation, Vanderbilt concluded that Z.J. had engaged in non-consensual sexual contact, dating violence, and attempted non-consensual sexual intercourse with A.H., and it expelled Z.J. as a sanction. Z.J. brings this action asserting over twenty claims under Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"); the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) ("Clery Act"); the Declaratory Judgment Act, 28 U.S.C. § 2201 ; and multiple Tennessee laws of contract and tort. Before the Court is Vanderbilt's Motion to Dismiss pursuant to Federal Rule of Procedure 12(b)(6). (Doc. No. 26.) Z.J. has responded in opposition (Doc. No. 36) and Vanderbilt has replied (Doc. No. 38). For the following reasons, Vanderbilt's Motion will be granted and this case will be dismissed.

I. Legal Standard

To survive a Rule 12(b)(6) motion, " 'a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed." Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007). The Court of Appeals for the Sixth Circuit recently confirmed, after a challenge, that this is indeed the governing standard for Title IX claims as well as other claims. See Doe v. Miami Univ., 882 F.3d 579, 588-589 (6th Cir. 2018) (rejecting the reduced pleading standard in Title IX cases enunciated by the Court of Appeals for the Second Circuit).

In deciding a motion to dismiss, the court is not required to accept summary allegations, legal conclusions, or unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) ; Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996). Nor is the court required to accept as true allegations that are contradicted by documents that have been incorporated by reference in the complaint. Williams v. CitiMortgage, Inc., 498 F. App'x 532, 536 (6th Cir. 2012).

As a general rule, "matters outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under [Federal Rule of Civil Procedure] 56." Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The term "pleadings" encompasses both the complaint and the answer, Fed. R. Civ. P. 7(a), and a copy of any exhibit thereto. Fed. R. Civ. P. 10(c). However, the Court of Appeals has held that "[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim." Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; see also Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (holding that a district court may consider documents referenced in the pleadings that are "integral to the claims" in deciding motion to dismiss); Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (noting that in deciding a motion to dismiss "the court may also consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice"). In short, "if both parties reference and quote extensively from particular documents, and neither party contests the appropriateness of considering the documents on review of a motion to dismiss, the Court may consider the documents." Doe v. Ohio St. Univ., 219 F.Supp.3d 645, 653 (S.D. Ohio 2016) (hereinafter " Ohio St. Univ. I") (citing In re Fair Fin. Co., 834 F.3d 651, 656 n.1 (6th Cir. 2016) ).

II. Factual Allegations and Procedural Background

Vanderbilt is a private university located in Nashville, Tennessee, that accepts federal funding. (Doc. No. 23 at ¶¶ 6, 32.) Z.J., a resident of Tennessee, matriculated at Vanderbilt in the fall of 2012 and intended to graduate. (Id. at ¶ 8, 11-12, 96.) Upon enrolling at Vanderbilt, Z.J. - like every other student - became (1) generally bound by Vanderbilt's honor code, which is embodied in the "Community Creed," and (2) specifically governed by the policies and regulations set forth in the Vanderbilt Student Handbook ("Handbook"). (Doc. Nos. 27-1 at 1-2.) Vanderbilt specifies that it reserves the right to "add to, modify, or revoke any of its regulations and policies, including those in the [H]andbook, without notice," and students are cautioned that "the information provided, and the regulations and policies articulated in the [Handbook ] are not intended to be all-inclusive and do not constitute a contract." (Id. at 2) The Handbook includes a general provision regarding "Fair Procedures" in which Vanderbilt states that it is "committed to providing students with the opportunity to present complaints about the action of any member of the University community." (Doc. No. 23 at ¶ 105.) Vanderbilt generally commits to providing "fair and appropriate procedures, including the opportunity for appeal, for addressing and resolving complaints," that will be administered openly, fairly, cooperatively, and with a mutual respect among the participants. (Id.)

A. Vanderbilt's Sexual Misconduct Policy

The Handbook includes a dedicated disciplinary policy concerning "Sexual Misconduct and other Forms of Power-Based Personal Violence" ("Sexual Misconduct Policy"). (Id. at 99-121.) According to the Sexual Misconduct Policy, "Vanderbilt takes reports of sexual misconduct and power-based personal violence seriously." (Id. at 108.) Vanderbilt (1) explains that it "prohibits and seeks to eliminate all forms of sexual misconduct, including sexual harassment and sexual assault, and other forms of power-based personal violence, which includes dating violence, domestic violence, and stalking"; (2) declares that it "has a duty to take steps to prevent and redress sexual misconduct and power-based personal violence"; and (3) affirms that "[s]uch conduct is contrary to Vanderbilt's values, represents socially irresponsible behavior, and is not tolerated." (Id. at 99.)

The Sexual Misconduct Policy lists and defines a variety of prohibited offenses, several of which are relevant here. (Id. at 104.) "Non-Consensual Sexual Contact" includes "any contact of a sexual nature - however slight - with the breasts, buttocks, groin, genitals, mouth, or other body part of another, by any person upon another without effective consent." (Id. at 104; Doc. No. 23 at ¶ 50.) "Dating Violence" is defined as "sexual or physical abuse or the threat of such abuse committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person against whom the violence is perpetrated." (Doc. No. 27-1 at 104; Doc. No. 23 at ¶ 50.) Finally, "Non-Consensual Sexual Intercourse" is "any vaginal and/or anal penetration - however slight - by a penis, object, tongue, or finger, and/or oral copulation (mouth to genital contact), by any person upon another without effective consent." (Doc. No. 27-1 at 104; Doc. No. 23 at ¶ 50.) The Sexual Misconduct Policy clarifies that "[d]eterminations regarding whether a person's level of intoxication affects their ability to give effective consent will be made on a case-by-case basis." (Doc. No. 27-1 at 106.) It also notes that intoxication does not "provide a valid explanation or excuse for engaging in any form of sexual misconduct or power-based personal violence." (Id.) Finally, the Sexual Misconduct Policy defines effective consent as "consent that is informed and freely and actively given." (Id. at 107.)

How Vanderbilt responds to complaints under the Sexual Misconduct Policy "depends upon a variety of factors, including the wishes of the victim, the facts and circumstances of the specific incident, to whom it was reported, and [Vanderbilt's] obligations under applicable federal and state laws." (Id. at 108.) Vanderbilt recommends that students make complaints of sexual misconduct directly to its Equal Opportunity, Affirmative Action, and Disabilities Services Department ("EAD"), which is led by the University's Title IX Coordinator (at the time Anita Jenious), and has responsibility for administrative investigation of reports of Sexual Misconduct Policy violations. (Id. at 110.) "The EAD staff is trained annually and on an ongoing basis on issues related to sexual harassment, sexual misconduct, and power-based personal violence, and in conducting investigations in a manner that protects the well-being and safety of the complainant, the respondent, and the [Vanderbilt] community." (Id.) Students may also make an initial complaint to another Vanderbilt employee, and that person will refer the matter to EAD. (Id.) "Everyone is encouraged to report sexual misconduct or power-based personal violence even if some or all information is unavailable or cannot be provided." (Id. at 111.)

B. The Sexual Misconduct Policy Complaint and Investigation Process

After a complaint of a violation of the Sexual Misconduct Policy is brought to the attention of EAD, the first step is for the Title IX Coordinator and EAD to determine whether to proceed with an investigation. (Id. at 111.) The Title IX Coordinator and EAD consider a variety of factors, including "the interests of the complainant and [Vanderbilt's] commitment to a safe and nondiscriminatory environment for all members of the [Vanderbilt] community." (Id.; Doc. No. 23 at ¶ 57.) On the other hand, in weighing a request that no investigation be conducted, "the Title IX Coordinator will consider a variety of factors, including, but not limited to, the complainant's desire for confidentiality, information concerning any previous allegations involving the respondent, the likelihood of repeated offenses, evidence that the alleged misconduct is part of a pattern of misconduct, and [Vanderbilt's] ability to ensure that the alleged misconduct does not contribute to the creation of a hostile environment for any students." (Doc. No. 27-1 at 111.) EAD will gather evidence from the complainant, including the names of potential witnesses and supporting documentation such as emails, text messages and social media posts. (Id. at 112.) If EAD determines a complaint involves an alleged violation of the Sexual Misconduct Policy, it "will normally commence an investigation." (Id.)

Upon a determination by the Title IX Coordinator that an investigation involving a student respondent will be conducted, "the EAD investigator will normally provide a summary of the allegations to the Director of Student Accountability," who will then "determine the charge(s) to be brought, if any, and present the charge(s) and possible sanctions to the respondent." (Id. at 112.) "After the presentation of any charge(s), "the respondent will have the opportunity to agree or disagree with the charge(s)." (Id.) The completed charge sheet is then sent to EAD for further investigation and a determination. (Id.) But whether or not the Director of Student Accountability has already presented charges, the Sexual Misconduct Policy directs that "the EAD investigator will inform the respondent of the allegations, the status and/or initiation of an investigation, and the possibility of sanctions, and will provide the student alleged to have engaged in misconduct with an opportunity to respond to the allegations, ask questions, provide information, and offer names of witnesses or other people with relevant information." (Id. at 113; Doc. No. 23 at ¶ 59.)

The Sexual Misconduct Policy provides that EAD investigators will interview the respondent and other individuals that it determines "may have pertinent knowledge." (Doc. No. 27-1 at 113.) "[S]upporting documentation and information may be collected from the complainant, respondent, and witnesses," and "EAD may request access to premises, records, documents, and other forms of evidence it deems relevant to the complaint." (Id.; Doc. No. 23 at ¶ 59.) As the investigation progresses, EAD investigators may seek clarification from any person participating in the investigation regarding the incident or their statement. (Doc. No. 27-1 at 113.) The complainant and respondent are allowed to notify EAD investigators of "any additional information during the course of the investigation." (Id.) The Sexual Misconduct Policy states that the complainant and the respondent will be given the opportunity "to review and revise the summar[ies] of their interview[s] prepared by the EAD investigator." (Id.)

Student are expected "to cooperate with the investigation[ ] conducted by EAD." (Id.) During an investigation, both a complainant and respondent are permitted to have an "adviser" of their choosing to accompany them to meetings related to disposition of the complaint. (Id.) The adviser for either party may confer privately with that party, but may not speak on the party's behalf or otherwise participate in any meeting. (Id.)

At the conclusion of an investigation, and prior to making a determination, EAD prepares a preliminary investigation report that contains a summary of the information and documents that EAD considers to be relevant to whether the respondent violated the Sexual Misconduct Policy. (Id. at 114; Doc. No. 23 at ¶ 59.) The complainant and respondent are each given an opportunity to review a copy of the preliminary report. (Doc. No. 27-1 at 114.) Both the complainant and respondent are then allowed to submit, within five days, up to five pages of written comments. (Id.) After considering those comments on the preliminary report, EAD issues a final investigation report that sets forth EAD's final determinations, based on a preponderance of the evidence (i.e., more likely than not) standard, regarding whether the respondent violated the Sexual Misconduct Policy by engaging in any prohibited offenses. (Id.; Doc. No. 23 at ¶ 63.) The final investigation report contains a summary of the information and documents on which it is based and addresses, "to the extent EAD considers appropriate," any comments received from the complainant or respondent on the preliminary report. (Doc. No. 27-1 at 114.) The parties' comments to the preliminary investigation report are also appended to the final investigation report. (Id.) When the respondent is determined to have engaged in the conduct for which he or she was charged, the final investigation report will also be forwarded to the appropriate person for sanctioning, referral, or follow-up - in the case of a student respondent, the Director of Student Accountability. (Id.)

If the EAD has determined that a respondent violated the Sexual Misconduct Policy, the Director of the Office of Student Accountability, Community Standards, & Academic Integrity (or designee) ("Director of Student Accountability") reviews the EAD's final investigation report, seeks any necessary clarifications, and renders an appropriate sanction. (Id. at 116.) "The sanctioning determination is made "based on the information contained in the EAD investigative report, with particular regard for the nature of the incident and the respondent's reported cooperation and candor, and the respondent's disciplinary history (if any)." (Id.) Available sanctions for non-consensual sexual contact and dating violence range from disciplinary probation to expulsion; for non-consensual sexual intercourse the sanctions range from suspension to expulsion. (Id.)

C. The Sexual Misconduct Policy Appeal Process

Either party has the right to appeal a determination by EAD or any sanction rendered by the Director of Student Accountability. (Id. at 117; Doc. No. 23 at ¶¶ 65, 89.) Student appeals are decided by a panel of three Appellate Officers for Sexual Misconduct and Power-Based Personal Violence ("Appellate Officers"). (Id.) Appellate Officers are faculty or academic administrators, appointed by the Chancellor (or the Chancellor's designee) for two or three-year terms, who receive annual training on issues involved in sexual misconduct and other forms of power-based personal violence. (Id.) Within ten days of the determination, a respondent assessed a sanction may submit a written appeal petition of no more than ten pages in length. (Doc. No. 27-1 at 117; Doc. No. 23 at ¶ 65.) The petition must include the following: a statement of the grounds for appeal, a supporting explanation, and copies of, or reference to, all information not previously submitted to the EAD that the petitioner wishes the Appellate Officers to consider.

There are only four limited grounds for appeal, however, and "new" information will only be consideration in the limited context of those contentions. The possible grounds for appeal are:

a. Procedural irregularities sufficient to affect the determination or sanction;

b. Insufficient information to support the determination;

c. New information that was not reasonably available for presentation to EAD, the introduction of which could reasonably be expected to affect EAD's determination; or

d. Harshness of the sanction imposed by the Director of Student Accountability sufficient to show an abuse of discretion.

(Doc. Nos. 27-1 at 117-18; Doc. No. 23 at ¶ 91.) As part of the appeal process, the petition is sent to EAD, the Director of Student Accountability, and the non-appealing student, and those parties are given an opportunity to submit a written response. (Doc. Nos. 27-1 at 118; Doc. No. 23 at ¶ 65.) The petitioning student may then reply. (Id.)

The Appellate Officers then proceed to consideration of the appeal. "The Appellate Officers' consideration of the appeal must be based only on the original records created by or provided to EAD and/or the Director of Student Accountability and the petition, any new information in the petition that was not reasonably available for presentation to EAD and the introduction of which could reasonably be expected to affect EAD's determination that the Appellate Officers determine should be considered, any written comments/response, and the reply." (Doc. Nos. 27-1 at 119; Doc. No. 23 at ¶ 90.) The Appellate Officers decide by majority vote whether to affirm, modify, or reverse the determination or sanction or to remand the case to EAD or the Director of Student Accountability with instructions. (Doc. No. 27-1 at 118.) "At no time may Appellate Officers substitute their opinions or values for Vanderbilt policy." (Id.)

D. The Complaint Against Z.J. by A.H.

1. The Events of March 19, 2016

On March 19, 2016, Z.J. and A.H., who "did not really know each other," separately attended a St. Patrick's Day tailgate party at a fraternity house on Vanderbilt's campus. (Doc. No. 23 at ¶ 13; Doc. No. 45 at 4.) Both Z.J. and A.H. reported having consumed a significant amount of alcohol that afternoon. (Doc. No. 45 at 4.) A.H. reported that she was "very inebriated." (Id.) Z.J. reported that he was "not sure" how drunk A.H. was, "but would assume somewhat as she was drinking during the duration of the day." (Id.) Z.J. described himself as having imbibed a "fair amount" and being "drunk but not out of control," including consuming multiple beers and other liquor-based drinks. (Id. at 4-5.) Around mid-afternoon, Z.J. and A.H. "crossed paths" and subsequently agreed to go to Z.J.'s dormitory suite. (Doc. No. 23 at ¶ 14; Doc. No. 45 at 4.) A surveillance video captured them entering Z.J.'s dormitory elevator at 4:13 p.m. (Doc. No. 23 at ¶ 14; Doc. No. 45 at 5 n.7.)

According to the Complaint: (a) the two students began clothed "consensual kissing and petting"; (2) Z.J. asked A.H. if she wanted to have sexual intercourse, and she declined because she was too intoxicated and the two students did not know each other well enough; (3) A.H. asked Z.J. if he knew her name, and he responded with an incorrect but "close version," to which A.H. became visibly upset; (4) "in an effort to console" A.H., Z.J. "reached to the back of A.H.'s neck to gently sit A.H. back down on the bed"; (5) Z.J. understood why A.H. would be upset about the name mix-up and was not angry about her refusal to have sexual intercourse; (6) Z.J. "inadvertently and non-maliciously placed his thumb and/or fingers on the side, possibly close to the front, of A.H.'s neck." (Id. at ¶¶ 15-17.) Z.J. alleges that A.H. then had a panic attack and told Z.J. that he has triggered unpleasant memories of a past experience of having hands around her throat. (Id. at ¶ 18.) Z.J. alleges that he then "ceased physical contact" with A.H., except for holding her shoulders to "console and calm her down." (Id. at ¶ 19.) Z.J. gave A.H. some water and felt "helpless and unsure" how to act. (Id. at ¶ 20.) He "suggested she wait to leave until she had calmed down." (Id.)

According to surveillance tape, A.H. left Z.J.'s dorm room at approximately 6:06 p.m. (Id. at ¶ 21; Doc. No. 45 at 9.) A.H. took the elevator to the lobby of the dorm building and entered the bathroom, where she stayed for 24 minutes before leaving while on her cell phone. (Id.) Upon returning to her own dorm room, A.H. went to the bathroom and immediately began to shower. (Id. at ¶ 22; Doc. No. 45 at 9.) While in the shower, A.H. began calling out for her roommate ("Student 1"). (Doc. No. 23 at ¶ 22.) Student 1 found A.H. in a panicked state, "crying and hyperventilating." (Id.) A.H. said to Student 1, "he choked me." (Id.)

2. The Events of March 20-21, 2016

On March 20, 2016, A.H. explained to Student 1 what had happened to her and the symptoms she was having. (Doc. No. 23 at ¶¶ 23, 66; Doc. No. 45 at 9.) According to A.H., she woke up with bruising on her breasts, thighs and buttocks, a very stiff neck, trouble swallowing, and difficulty moving her neck. (Doc. No. 45 at 9.) Student 1 encouraged A.H. to get examined at Vanderbilt University Medical Center ("VUMC"). (Doc. No. 23 at ¶ 23.) A.H. and Student 1 "fought about what she should do before finally deciding to go" to VUMC. (Doc. No. 45 at 9.)

A.H. and Student 1 went to VUMC and A.H. asked to be examined in relation to being physically assaulted by another student. (Doc. No. 23 at ¶ 67.) A triage nurse referred A.H. to a social worker, Esther Alcorn, after hearing she had allegedly been physically assaulted; the social worker, in turn, spoke with Vanderbilt University Police Department ("VUPD") about the reported assault. (Id.) VUPD dispatched an officer to the Emergency Department to speak with A.H. and others. (Id.) A.H. reported to the officer that she and Z.J. engaged in "consensual petting" but no "sexual penetration." (Id.) According to A.H., she then declined to have sexual intercourse with Z.J., which made Z.J. so angry he "placed his hand at [A.H.'s] neck and shoved her to the ground." (Id.) A.H. said that she was able to break free of Z.J.'s grasp, but began to have a panic attack. (Id.; Doc. No. 45 at 12.) A.H. reported that she later had tightness and soreness in her throat and it was difficult to swallow. She also reported that there was soreness in her breast area from where Z.J. had groped her. (Doc. No. 45 at 12.)

A.H. also gave a written statement to VUPD. (Id. at ¶ 67; Doc. No. 45 at 12.) A.H. reported that, after she told Z.J. that she did not want to have sexual intercourse, Z.J. (1) became "angry and frustrated"; (2) "proceeded to try to convince [her] to hook up"; (3) "forcibly groped" her; and (4) when A.H. got mad, "tried to choke [her] by grabbing [her] neck and cutting off [her] air." (Doc. No. 23 at ¶ 67; Doc. No. 45 at 12.) A.H. stated that, at that point, she "threw [Z.J.] off and got dressed to leave" but that, because she was "hysterical," Z.J. "wouldn't let [her] leave until [she] calmed down." (Doc. No. 23 at ¶ 67; Doc. No. 45 at 12.) A.H. mentioned that her memory at that moment was still "spotty," but noted that she "was drunk at the time" and that "when [she] woke up [her] neck was stiff and sore and [she] had bruises all over [her] breasts." (Doc. No. 23 at ¶ 67; Doc. No. 45 at 12.)

Student 1 and social worker Alcorn were interviewed by VUPD. Alcorn reported to VUPD that, after A.H. told Z.J. "no" to sex, he became violent, bit her breast, choked her, and slammed her down. (Doc. No. 23 at ¶ 67; Doc. No. 45 at 13.) The social worker told a second VUPD officer that A.H. had reported Z.J. became upset when she did not want to have sex, and that this "sparked the assault" whereby Z.J. "grabbed her neck and it was sore to the touch." (Id. at ¶ 67.) The social worker also explained that Z.J. had been "attempting to have [A.H.] calm down before leaving the room due to her outburst that was loud." (Id.) Student 1 reported to VUPD that A.H. had said she angered Z.J. by telling him "no" to sex, Z.J. then got violent with A.H., Z.J. had "choked [A.H.]," after which Z.J. "started to apologize and said he didn't mean it." (Doc. No. 45 at 13; Doc. No. 23 at ¶ 67.)

Both Alcorn and Student 1 also gave written statements to VUPD. (Doc. No. 23 at ¶ 67.) The social worker's written statement reiterated that A.H. told Z.J. "no," Z.J. became angry and assaulted her by "grabb[ing] her around the throat and chok[ing] her." (Id.) Student 1's written statement related that "A.H. told me the guy choked her ... they were both drunk, and she told him she didn't want to have sex. She said he tried to calm her down before she left the room because this had spurred a panic attack.... She was not respected and harmed instead." (Id.)

Z.J. provided a statement to VUPD. (Id. at ¶ 69; Doc. No. 45 at 12.) Z.J. stated that A.H. had been upset by his inability to remember her name and by an anxiety attack she had that was unrelated to him and due to A.H.'s "previous misfortunes." (Doc. No. 23 at ¶ 69.) After being advised by VUPD of "the bruising seen in the neck and breast area," Z.J. "said that he did not intentionally choke her but was holding her shoulders while trying to calm her down." (Id.) Z.J. took responsibility for "heavy-handed petting," being "disrespectful," "not knowing her name," and being an "asshole." (Id.; Doc. No. 45 at 12.) Z.J. also stated that no vaginal penetration occurred. (Doc. No. 23 at ¶ 69.)

Z.J. also provided a written statement to VUPD (directed toward A.H.), in which he stated: "I cannot say enough times how sorry I am. At no point did I intend to hurt you or to force you to do anything against your will." (Id. at ¶ 70; Doc. No. 45 at 12.) Z.J. continued: "Nothing I did was meant to be hostile or malicious, and if you could forgive me for even putting that possibility in the air, I would appreciate it." (Doc. No. 23 at ¶ 70.) Z.J. noted that he was sorry if "[his] hands on [A.H.'s] neck caused [her] to feel unsafe at any time" or A.H. "felt taken advantage of" at any point. (Id.; Doc. No. 45 at 12.)

Medical and photographic evidence was taken at VUMC. (Doc. No. 45 at 13.) Among other things, the records reflected that A.H. had (1) a contusion on her lower lip, (2) tenderness to the hyoid and cricoid cartilage regions, (3) "significant, extensive bruising to the breast bilaterally," and (4) extensive bruising to the inner thighs bilaterally. (Doc. No. 45 at 14.) The first reporting VUPD officer's incident report also documented A.H.'s injuries, including "obvious bilateral bruising to the breast tissue," a "1-1½ inch hickey around A.H.'s sternum," "very light bruising on either side" of her neck, and a "stiff" neck with "apparent pain to the anterior neck region." (Doc. No. 23 at ¶ 68.)

E. Vanderbilt's Investigation of A.H.'s Complaint

A.H.'s allegations were brought to the attention of EAD. On March 29, 2016, after reviewing the narratives and photographs, EAD's Title IX Compliance Manager D. Michael Carter recommended to EAD's Title IX Coordinator, Anita Jenious, that EAD investigate the matter. (Doc. No. 45 at 1.) Jenious accepted the recommendation and EAD presented a summary of the allegations to Mary Helen Solomon, the Director of Student Accountability. (Id.) On April 4, 2016, Solomon met with Z.J. and formally charged him with attempting to commit sexual misconduct, non-consensual sexual contact, and dating violence. (Id. at 1, 3.) The specific allegations were as follows: "Attempted to engage in sexual intercourse with a female student without her consent on March 19, 2016 in Carmichael Towers. It is further alleged that you groped the female student without her consent and put your hands around her neck in an attempt to choke her when she tried to stop the sexual contact." (Id. at 1-2.) Z.J. denied violating the Sexual Misconduct Policy as described in the charge and indicated so on the charge sheet. (Id. at 2-3.)

The investigation included two interviews of Z.J., written information and answers provided by A.H., the interview of one non-party witness, as well as a review of VUPD reports, VUMC medical information, photographs and surveillance video. (Id.) More specifically, EAD first interviewed Z.J. on April 11, 2016. (Doc. No. 23 at ¶ 71.) Also present at that interview was Z.J.'s personal adviser, a senior Vanderbilt student. (Doc. No. 45 at 3.) At this time, Z.J. was shown photographs of the bruising on A.H. He acknowledged that there were bruises on the upper part of both of A.H.'s breasts. (Doc. No. 45 at 10.) Z.J. suggested that the bruises could have been caused "[p]ossibly from my hands being on them, grabbing them harder than I anticipated. I was heavy-handed." (Id.) Z.J. also acknowledged that he saw bruises on A.H.'s throat. (Id.) When asked how they arose, he replied, "I guess from where I put my hands on her neck too hard." (Id.)

Z.J. was provided with a summary of EAD's interview notes to review and return, and Z.J. did so later that same day. (Id.) Two days later, EAD provided A.H. with a list of questions. (Doc. No. 23 at ¶ 72.) A.H. responded in writing the next day. (Id.) On April 15, 2016, A.H. also submitted a narrative summary of the events in question. (Id. at ¶ 73.) Z.J. participated in a second interview with EAD on April 20. (Id. at ¶ 74; Doc. No. 45 at 4.) Z.J. did not have an advisor present at this interview. (Doc. No. 45 at 4 n.4.) Once again, Z.J. was given EAD's notes of the interview with him to review and return, and he did so the same day. (Id. at 4.)

EAD also interviewed Student 1. (Doc. No. 23 at ¶ 76.) Student 1 reported that A.H. eventually told her that she and Z.J. were making out, he wanted to have sex but she did not, and he choked her. (Id. at ¶ 76a; Doc. No. 45 at 11.) Student 1 stated that A.H. had said she "felt bad" because maybe she had been "teasing" Z.J., but that A.H. had also confided that Z.J. had "beat her." (Doc. No. 23 at ¶ 76b; Doc. No. 45 at 11.) Student 1 saw red marks on A.H.'s neck, heard A.H. say it hurt to swallow, and heard A.H. say her breasts were in pain. (Doc. No. 45 at 11.)

A.H. also provided additional information over the course of the EAD investigation. (Id. at ¶ 75.) A.H. recalled that when she was in Z.J.'s room engaged in consensual petting, suddenly her clothes were off. (Id. at ¶ 75a.) In his first EAD interview, Z.J. had denied that A.H.'s clothes were off. (Doc. No. 45 at 5.) In his second EAD interview, Z.J. said that the idea that all of A.H.'s clothes were ever off "was not familiar to him," but that he could not remember because it was "a month and a half ago." (Id.) Z.J. further stated that, if anything was off, it was A.H.'s shirt. (Id. at 5-6.).

Other substantive issues arose and were considered by EAD as A.H. supplied additional information, including (1) events surrounding Z.J.'s alleged aggressive groping of A.H.'s breasts, including the extent to which A.H. verbalized that Z.J. was hurting her, whether Z.J. could remember any manifestations of pain by A.H., and how A.H. told Z.J. to stop (see Doc. No. 23 at ¶¶ 75c, 75f; Doc. No. 45 at 6-7); (2) the parties' memories of whether A.H. said she did not want to have sex because she was "too drunk" (see Doc. No. 23 at ¶ 75d; Doc. No. 45 at 6.); (3) whether and why Z.J. allegedly grew mad at A.H. when she declined sex (see Doc. No. 23 at ¶ 75e; Doc. No. 45 at 6-7); (4) whether at one point Z.J. was on top of A.H. on the bed, continuing to pressure her for sex (see Doc. No. 23 at ¶ 75g; Doc. No. 45 at 7); (5) whether Z.J. removed A.H.'s underpants against her wishes (see Doc. No. 23 at ¶ 75h; Doc. No. 45 at 7); (6) whether Z.J. tried to push open A.H.'s legs (see Doc. No. 23 at ¶ 75i.; Doc. No. 45 at 7.); (7) how exactly Z.J. handled A.H.'s neck (see Doc. No. 23 at ¶ 75j; Doc. No. 45 at 8); (8) whether Z.J., in an overly intoxicated state, "blew [A.H.] a kiss" when she left his room (see Doc. No. 23 at ¶ 75l; Doc. No. 45 at 9); and (9) how long the parties each estimated that they were in Z.J.'s room (see Doc. No. 45 at 9 and n.2.).

F. The Investigation Reports

EAD issued a preliminary investigation report on April 27, 2016 ("Preliminary Report"). (Doc. No. 23 at ¶ 80.) EAD sent it to Z.J. and A.H. the same day via email. (Doc. No. 45 at 4.) A.H. submitted comments in response - namely, that she did not remember Z.J. biting her or specifying that Z.J. threw her to the ground. (Doc. No. 23 at ¶ 77a.) A.H. also confirmed to EAD that she told Z.J. that she had a previous negative interaction with someone who had put his hands around her throat. (Id. at ¶ 77b.) Z.J. did not respond to the preliminary investigation report. (Doc. No. 45 at 2.)

EAD issued the final investigative report ("Final Report") on May 9, 2016. (Doc. No. 23 at ¶¶ 80-81; Doc. No. 45.) The Final Report explained EAD's analysis of the credibility of A.H. and Z.J., including its evaluation of consideration of the consistency of their statements, demeanor, their incentives to lie, the existence or absence of corroborating evidence, and the presence and/or plausibility of specific details in witnesses' statements. (Doc. No. 23 at ¶ 83; Doc. No. 45 at 14.) EAD concluded that A.H.'s account of the events of March 19, 2016 was more credible. (Doc. No. 23 at ¶ 84; Doc. No. 45 at 14.) This was based on A.H.'s more consistent reporting of the events to several different people, including VUPD, Alcorn, Student 1, and EAD (i.e., initial consensual petting, refusing sexual intercourse, Z.J. becoming upset, and Z.J. grabbing her neck) versus Z.J.'s less consistent reporting of events (including uncertainty as to whether A.H.'s clothing was removed and regarding where and how he placed his hands on A.H.'s neck). (Doc. No. 23 at ¶ 84a; Doc. No. 45 at 14-15.)

Next, the Final Report reviewed the evidence and concluded that A.H. had the ability to recall details whereas Z.J. gave noncommittal answers. (Doc. No. 23 at ¶ 84b; Doc. No. 45 at 15.) In short, EAD found that A.H. could recall "many more" details than Z.J., some of which Z.J. confirmed, others of which Z.J. simply could not recall. (Doc. No. 45 at 15-16.) EAD also found corroborating evidence for A.H.'s reports to EAD or VUPD. (Id. at 16; Doc. No. 23 at ¶ 84c.) Specifically, the Final Report listed corroboration in the form of medical evidence, photographic evidence, surveillance video, A.H.'s more accurate time estimate, and Student 1's testimony. (Doc. No. 45 at 16.) EAD also noted that, although Z.J. later indicated that he thought A.H. was not being truthful, in his first EAD interview, Z.J. said that he was "not calling A.H. a liar." (Id. at 17.)

Informed by EAD's conclusions that A.H. was more credible and had better recall of details, EAD made several findings in the Final Report - namely, that: (1) Z.J. groped A.H. in an aggressive manner, (2) A.H. "communicated clearly" to Z.J. that she did not want to have sex because they were intoxicated and/or Z.J. did not know A.H.'s name; (3) the aggressive groping continued and is "apparent" in the medical and photographic evidence of significant bruising to the A.H.'s breasts; (4) Z.J. got upset when A.H. indicated that she did not want to have sex; (5) Z.J. got on top of A.H. and stated he wanted to have sex with her; (6) Z.J. removed A.H.'s underwear; (7) Z.J. attempted to push A.H.'s legs apart for the purpose of penetration; (8) as A.H. struggled to leave, Z.J. grabbed A.H.'s neck from the front and held her down for a few seconds; (9) it is not plausible that the tenderness to A.H.'s hyoid bone situated in the front of the neck and cricoid cartilage region near the middle and center of the neck was caused by Z.J. holding A.H. by the back of her neck; (10) A.H. was able to get out from under Z.J., had a panic attack, and spent nearly 30 minutes in Z.J.'s dorm restroom - behavior consistent with someone who has just experienced a traumatic event; (11) A.H. returned to her room, immediately took a shower and experienced another panic attack - further behavior consistent with someone who has just experienced a traumatic event. (Doc. No. 23 at ¶ 86; Doc. No. 45 at 17-19.)

In the end, EAD found that Z.J. engaged in contact of a sexual nature without effective consent, used physical force against A.H. during the encounter, and attempted to engage in non-consensual sexual intercourse with A.H. (Doc. No. 23 at ¶ 82; Doc. No. 45 at 2.) Accordingly, the Final Report explained that "there is sufficient evidence to conclude that the respondent engaged in Non-Consensual Sexual Contact, Dating Violence, and Attempted Non-Consensual Sexual Intercourse in violation of the [Sexual Misconduct Policy] based on a preponderance of evidence standard." (Doc. No. 45 at 2, 20-21.)

G. Sanction, Appeal, and Impact

On May 18, 2016, Z.J. appealed the Final Report. (Doc. No. 23 at ¶¶ 89, 92.) Z.J. stated that EAD's decision had been based on unfounded assumptions from second-hand sources, incomplete information, and "lack of consideration for his own narrative." (Id. at ¶ 92.) Z.J. noted in his appeal that a VUMC nurse had expressed the view that the bruises on A.H.'s thighs were not related to the incident. (Id.) On June 2, 2016, EAD Compliance Manager Carter filed a response to the appeal. (Id. at ¶ 93.) Carter stated that EAD examined the totality of the evidence, did not know what incomplete evidence Z.J. referred to, and still found A.H. more credible. (Id.) On June 3, 2016, Director of Student Accountability Solomon sent a letter to the Appellate Officers about Z.J.'s case. (Id. at ¶ 94.) She relied on the Final Report and stated that expulsion was the appropriate sanction because physical violence was involved. (Id.) Thereafter, the Appeals Officers affirmed the Final Report and decision to expel Z.J. (Id. at ¶ 95.)

Z.J. was expelled from Vanderbilt three days before his 2016 graduation. (Id. at ¶ 96.) He was not allowed to receive his degree, and his transcript was marked with the disciplinary action. (Id. at ¶¶ 96, 99.) Despite having been in the U.S. Army Reserve Officer Training Corps Program, Z.J. was not commissioned as an officer. (Id. at ¶ 97.) Z.J. is now required to repay a significant sum of tuition and scholarship money to Vanderbilt. (Id. at ¶ 98.)

H. Procedural History

On May 5, 2017, Z.J. filed a complaint against Vanderbilt in the Circuit Court of Davidson County, Tennessee. (Doc. No. 1. at 1.) Z.J. filed an amended complaint one week later. (Id.) On June 12, 2017, Vanderbilt removed this action to federal court pursuant to 28 U.S.C. §§ 1441(a), 1331, and 1367. (Id.) In June 2017, Vanderbilt filed a Motion to Dismiss. (Doc. No. 7.) However, before the Court could rule on that motion, the Court of Appeals for the Sixth Circuit issued the decision in Doe v. Miami University, which contained a relevant and important discussion of Title IX claims in the context of university sexual misconduct disciplinary proceedings. Miami Univ., 882 F.3d at 579. To give the parties the opportunity to address that precedent, the Court denied the motion to dismiss without prejudice, granted Z.J. an opportunity to file a second amended complaint, and allowed Vanderbilt to file a new motion to dismiss. (Doc. No. 21 at 1-2.) Z.J. filed the Second Amended Complaint ("Complaint") on March 9, 2018 (Doc. No. 23), and Vanderbilt thereafter filed a second Motion to Dismiss (Doc. No. 27).

The Complaint generally purports to bring numerous causes of action, specifically (1) Title IX; (2) Clery Act; (3) Declaratory Judgment Act; (4) breach of contract; (5) promissory estoppel; (6) defamation; (7) negligence per se ; (8) negligence; (9) gross negligence; (10) intentional infliction of emotional distress; and (11) unjust enrichment claims, including sub-claims based on different theories of liability. (See Doc. No. 23.) Each of Z.J.'s claims is broadly premised on the allegation that Vanderbilt mishandled A.H.'s complaint against Z.J. under Vanderbilt's Sexual Misconduct Policy. (Id.) Z.J. seeks damages over $25,000,000; certain declaratory relief; and certain injunctive relief, including a ruling that Vanderbilt's findings were "not supported by substantial evidence beyond the preponderance of evidence standard" and to command Vanderbilt to expunge the incident from Z.J.'s records and confer a degree on him. (Id. at 49.)

III. Discussion

Vanderbilt has moved to dismiss all of Z.J.'s claims. Z.J. generally resists the motion by relying on the sufficiency of his factual allegations.

"There has been much debate in recent times about the most effective method for addressing the formidable problem of sexual assault on college campuses. College administrators, politicians, academics and students alike have clashed on how best to balance the interests and rights of complainants with those of the accused." Yu v. Vassar College, 97 F.Supp.3d 448, 461 (S.D.N.Y. 2015). The Court, however, has a limited role to play. Particularly at the motion to dismiss stage, "this case comes before the Court in limited posture." Doe v. Univ. of the South, 687 F.Supp.2d 744, 755 (E.D. Tenn. 2009) (hereinafter " Univ. of the South I"). Because Z.J.'s claims against Vanderbilt are grounded upon the manner in which the university conducted the process leading to its conclusion that he had violated the Sexual Misconduct Policy and the resulting imposition of sanctions, the Court's review is "substantially circumscribed" - namely, "the law does not allow th[e] Court to retry the University's disciplinary proceeding." Id. (quoting Gomes v. Univ. of Maine Sys., 365 F.Supp.2d 6, 14 (D. Maine 2005) ); Doe v. Belmont Univ., 334 F.Supp.3d 877, 899 (M.D. Tenn. 2018) (same); see also Plummer v. Univ. of Houston, 860 F.3d 767, 772 (5th Cir. 2017) ("It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion."); Saravanan v. Drexel Univ., 2017 WL 5659821, at *4 (E.D. Pa. Nov. 24, 2017) ("In reviewing [the university's] proceedings, we may not "advocate for best practices nor [...] retry disciplinary proceedings.") (quoting Yu, 97 F.Supp.3d at 461 ).

Furthermore, this is not a lawsuit between Z.J. and A.H. Accordingly, the Court is not asked to make an independent determination as to what happened between the Z.J. and A.H. on March 19, 2016. "The Court therefore expresses no opinion as to whether [a violation of the Sexual Misconduct Policy] occurred, whether any such acts were consensual, or who, as between [Z.J.] and [A.H.] is credible." Univ. of the South I, 687 F.Supp.2d at 755 ; see also Pierre v. Univ. of Dayton, 143 F.Supp.3d 703, 713 (S.D. Ohio 2015) (noting that "the issue before this Court is not whether the [university] should have believed a certain party's version of events") (hereinafter " Pierre"); Yu, 97 F.Supp.3d at 461 (explaining that the Court's role is only to determine if the school discriminated against the plaintiff under federal law or otherwise violated a provision of state law when it expelled him for sexually assaulting a fellow student). The Court only evaluates factual discrepancies to the extent they go to questions regarding the nature of the investigation, rather than the quality of the outcome. Doe v. Univ. of the South, No. 4:09-cv-62, 2011 WL 1258104, at *14 (E.D. Tenn. Mar. 31, 2011) (hereinafter " Univ. of the South II").

Bearing this in mind, the Court addresses each of Z.J.'s claims in turn.

A. Title IX Claims

Title IX was enacted to supplement the ban on discrimination in the Civil Rights Act of 1964, and it is designed to prevent sexual discrimination and harassment in educational institutions receiving federal funding. Bonnell v. Lorenzo, 241 F.3d 800, 810 n.6 (6th Cir. 2001) ; Schaumleffel v. Muskingum Univ., Case No. 2:17-cv-463, 2018 WL 1173043, at *12 (S.D. Ohio Mar. 6, 2018). Title IX states that: "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance...." 20 U.S.C. § 1681(a). It is beyond cavil that "Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline." Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). While the Court of Appeals has noted that "[e]ducation is a university's first priority [and] adjudication of student disputes is, at best, a distant second," Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017) (citing Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 88, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) ), regulations require educational institutions to implement "grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by [Title IX]." 34 C.F.R. § 106.8(b). Title IX is enforceable through a judicially implied private right of action, through which monetary damages are available. Klemencic v. Ohio St. Univ., 263 F.3d 504, 510 (6th Cir. 2001).

In Miami University, the Court of Appeals explicitly adopted for the first time in a published opinion the analytical framework set forth by the Second Circuit in Yusuf for determining whether a plaintiff is able to demonstrate that intentional gender discrimination occurred in connection with a university disciplinary proceeding. As a result, the Court of Appeals recognizes at least four theories of liability that a student who is attacking a university disciplinary proceeding on grounds of gender bias can potentially assert under Title IX. Miami Univ., 882 F.3d at 589 (citing Yusuf, 35 F.3d at 715 ). These theories are: (1) "erroneous outcome"; (2) "selective enforcement"; (3) "deliberate indifference"; and (4) "archaic assumptions." Miami Univ., 882 F.3d at 589 (citing Yusuf, 35 F.3d at 715 ;

Doe v. Cummins, 662 F. Appx. 437, 451-52 & n.9 (6th Cir. 2016) ; Mallory v. Ohio Univ., 76 F. App'x 634, 638-39 (6th Cir. 2003) ). In addition, a "hostile-environment" theory of liability has also been recognized in some Title IX cases, although it has a less obvious application in sexual misconduct disciplinary action cases. See Miami Univ., 882 F.3d at 589 (citing Doe v. Claiborne Cty., 103 F.3d 495, 515 (6th Cir. 1996) ). Z.J. attempts to bring claims on all five bases; Vanderbilt contends Z.J. does not plausibly allege any theory.

1. Hostile Environment and Deliberate Indifference

Under the combined heading of hostile environment and deliberate indifference, Z.J. alleges that: (1) Vanderbilt displayed deliberate indifference "motivated by [Z.J.'s] gender in all aspects of the investigation, hearing, and appeal; (2) Z.J.'s expulsion "was motivated by a deliberate indifference based on his gender and the gender of the complaining witness"; (3) Vanderbilt was "subjected to a prior, nationally publicized incident of sexual misconduct by [the all-male] members of its football team, which ... caused [Vanderbilt] to be overzealous in the prosecution of [Z.J.] due to his gender and the allegations filed against him"; and (4) Vanderbilt's "failure to consider alternatively less drastic measures created a severe, pervasive, and objectively offensive environment that barred [Z.J.] from receiving the educational benefit of a college degree from [Vanderbilt's] facility." (Doc. No. 23 at ¶¶ 195-198.) Z.J.'s allegations in this respect are peculiar because the Court of Appeals has expressly warned litigants not to conflate the theories of deliberate indifference and hostile-environment because "a hostile-environment claim and deliberate-indifference claim require the plaintiff to allege different elements." Miami Univ., 882 F.3d at 589.

a. Hostile-Environment Claim

A Title IX hostile-environment claim "is analogous to a Title VII hostile-environment claim." Id. at 590 (citing Claiborne Cty., 103 F.3d at 515 ); Tumminello v. Father Ryan High Sch., Inc., 678 F. App'x 281, 284 (6th Cir. 2017). To sustain this claim, a plaintiff must allege, among other things, that his educational experience was 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive [so as] to alter the conditions of the victim's educational environment." Miami Univ., 882 F.3d at 590 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal citations and quotation marks omitted); Doe v. Univ. of Dayton, Case No. 3:17-cv-134, 2018 WL 1393894, at *8 (S.D. Ohio Mar. 20, 2018) (hereinafter " Univ. of Dayton"). In Miami University, the plaintiff, who was suspended for violation of the university's sexual assault policy, made allegations of gender bias in the university's disciplinary process. Miami Univ., 882 F.3d at 586-88. The plaintiff argued that these allegations were sufficient to constitute a viable hostile-environment claim. Id. The Court of Appeals, however, held that those allegations did not support a reasonable inference that the plaintiff's educational experience was "permeated with discriminatory intimidation, ridicule, and insult." Id. (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367 ) (citation and internal quotation marks omitted). In Schaumleffel, a sister district court in this circuit followed the lead of Miami University to reach the same legal conclusion in similar circumstances. See Schaumleffel, 2018 WL 1173043, at *14.

Z.J. avers anti-male bias and overzealousness in the sexual misconduct disciplinary process. These allegations, as in Miami University, are not relevant to whether Z.J. was forced to endure an educational experience permeated with gender-based discriminatory intimidation and ridicule so severe and pervasive that it altered the very conditions of his educational environment. Indeed, Z.J. makes no complaint whatsoever about the "educational environment" at Vanderbilt, no complaint about nearly four years of his time on campus, and, most importantly, complains of nothing outside of his objections to the disciplinary process and its outcome. The Court therefore concludes that Z.J.'s allegations do not support the reasonable inferences necessary to allow a hostile-environment claim to proceed. See, e.g., Univ. of Dayton, 2018 WL 1393894, at *8 (concluding that allegations of flawed and biased investigation and resolution of a sexual assault allegation failed to state hostile-environment claim because they did not implicate the plaintiff's educational experience being so permeated with discriminatory intimidation and insult so as to alter the conditions of his educational environment).

b. Deliberate Indifference Claim

In contrast to a hostile-environment theory, to bring a claim under the deliberate indifference theory, the misconduct alleged by a plaintiff must be sexual harassment. Miami Univ., 882 F.3d at 591 (citing Mallory, 76 F. App'x at 638-39 ; Horner v. Ky. High Sch. Athletic Ass'n, 206 F.3d 685, 691-93 (6th Cir. 2000) ; Univ. of the South I, 687 F.Supp.2d at 758 ; see also Baum, 903 F.3d at 588 ("The deliberate-indifference theory was designed for plaintiffs alleging sexual harassment."); Schaumleffel, 2018 WL 1173043, at *14 ("The deliberate indifference standard applies when a plaintiff seeks to hold a university responsible for sexual harassment."). Furthermore, a deliberate indifference claim premised on student-on-student misconduct must allege "harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Miami Univ., 882 F.3d at 590 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) and citing Patterson v. Hudson Area Schs., 551 F.3d 438, 444-45 (6th Cir. 2009) ); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (same); Doe v. Tr. of Boston Coll., 892 F.3d 67, 93 (1st Cir. 2018) (same) (hereinafter " Tr. of Boston Coll. I"). Only claims involving pervasive and widespread harassment are actionable; a single incident is not enough. See Miami Univ., 882 F.3d at 591 ; Carmichael v. Galbraith, 574 F. App'x 286, 289-90 (5th Cir. 2014) ; Haidak v. Univ. of Mass. at Amherst, 299 F.Supp.3d 242, 270 (D. Mass. 2018). Alleged sexual harassment in the form of a failure to follow Title IX regulations is not a sufficiently severe form of discrimination to give rise to a deliberate indifference claim. Roe v. St. Louis Univ., 746 F.3d 874, 883-84 (8th Cir. 2014) ; Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 169 (5th Cir. 2011).

Accordingly, to plead a Title IX deliberate indifference claim, the misconduct Z.J. alleges "must be sexual harassment, not just a biased disciplinary process." Baum, 903 F.3d at 588 (quoting Miami Univ., 882 F.3d at 591 ); Univ. of Dayton, 2018 WL 1393894, at *8 (rejecting argument that plaintiff alleged a deliberate indifference claim based solely on the gender discrimination he asserted occurred throughout the disciplinary process). Z.J., however, alleges only bias in application of the Sexual Misconduct Policy and Vanderbilt's treatment of him during the disciplinary process. Z.J. has not alleged that he was sexually harassed, by A.H., Vanderbilt employees, or anyone else, before or during Vanderbilt's disciplinary proceedings. Z.J.'s deliberate indifference claim thereffore "fails because the alleged gender discrimination is not tethered to a claim of sexual harassment." Miami Univ., 882 F.3d at 591 ; see also Baum, 903 F.3d at 588 (concluding the same because the plaintiff "did not allege that actionable sexual harassment occurred during his disciplinary proceedings"); Doe v. Ohio St. Univ., 323 F.Supp.3d 962, 968 (S.D. Ohio 2018) (dismissing deliberate indifference claim because "[p]laintiff ha[d] not alleged that he complained to [the university] that he was being sexually harassed, nor is there any allegation that [the university] ignored his complaints of sexual harassment") (hereinafter " Ohio St. Univ. II"); Schaumleffel, 2018 WL 1173043, at *15 (reaching same conclusion because the plaintiff's claims were based not on sexual harassment but on "the alleged gender discrimination that occurred throughout his disciplinary process"); Univ. of Dayton, 2018 WL 1393894, at *8 (dismissing deliberate indifference claim because the plaintiff only asserted that he suffered discrimination, not sexual harassment, "throughout the disciplinary process").

2. Archaic Assumptions Claim

Z.J. also brings a Title IX claim under the theory of "archaic assumptions." (Doc. No. 23 at ¶ 200.) Z.J. avers that Vanderbilt made a credibility finding in favor of A.H. "based on gender" and that the disciplinary process findings "clearly favored one gender over another." (Id. at ¶¶ 201-202.) Z.J., however, fundamentally misunderstands this theory of liability. The Court of Appeals "has never applied the archaic assumptions theory outside of the athletic context, and, indeed, [has] repeatedly refused litigants' requests to do so." Baum, 903 F.3d at 588. Specifically, "Title IX plaintiffs use the archaic assumptions theory to show that a school denied a student an equal opportunity to participate in an athletic program because of historical assumptions about boys' and girls' physical capabilities." Id. (citing Mallory, 76 F. App'x at 638-39 (explaining that the archaic assumptions theory applies "where plaintiffs seek equal athletic opportunities"); Cummins, 662 F. App'x at 451 n.9 ("The 'archaic assumptions' standard appears limited to unequal athletic opportunities.") );

see also Marshall v. Ohio Univ., Case No. 2:15-cv-775, 2015 WL 7254213, at *8 (S.D. Ohio Nov. 17, 2015) ("The archaic assumptions standard applies when a plaintiff seeking equal athletic opportunities demonstrates discriminatory intent in actions taken because of classifications based upon archaic beliefs and stereotypes about gender."). As recently as September of 2018, the Court of Appeals confirmed this understanding and affirmed the dismissal of an archaic assumptions claim concerning university disciplinary proceedings. See Baum, 903 F.3d at 588 (finding "no reason to change course"). Because Z.J.'s archaic assumptions claim clearly arises from disciplinary proceedings and outside the context of university athletics, it will be dismissed.

3. Selective Enforcement Claim

Z.J. also brings a Title IX claim under the theory of "selective enforcement." (Doc. No. 23 at ¶ 190.) In a selective enforcement claim, "a plaintiff essentially asserts that even if he or she did violate a university policy, the decision to initiate disciplinary proceedings or the severity of the penalty imposed was motivated by gender bias." Marshall, 2015 WL 7254213, at *6 (citing Yusuf, 35 F.3d at 715 ). "To prevail on a 'selective enforcement' claim, the plaintiff must show that a similarly-situated member of the opposite sex was treated more favorably than the plaintiff due to his or her gender." Cummins, 662 F. App'x at 452 ; see also Mallory, 76 F. App'x at 641 ("To support a claim of selective enforcement, [a male plaintiff] must demonstrate that a female was in circumstances sufficiently similar to his own and was treated more favorably by the [u]niversity."); Marshall, 2015 WL 7254213, at *6 (under the selective enforcement theory, a plaintiff must allege "that a female was in circumstances sufficiently similar to his own and was treated more favorably" by the university and that the difference in treatment was due to gender); Rossley v. Drake Univ., --- F.Supp.3d ----, ----, 2018 WL 5307625, at *20 (S.D. Iowa Oct. 12, 2018) (explaining that, to support a claim of selective enforcement, a plaintiff "must demonstrate that a female was in circumstances sufficiently similar to his own and was treated more favorably by the [u]niversity"). In particular, the Court of Appeals has specified that, to make this showing, a plaintiff must "identif[y] ... a comparator of the opposite sex who was treated more favorably by the educational institution when facing similar disciplinary charges." Cummins, 662 F. App'x at 452 (citing Yusuf, 35 F.3d at 716 );