                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0124n.06

                                           No. 18-3339


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   Mar 15, 2019
 JOHN DOE,                             )                                       DEBORAH S. HUNT, Clerk
                                       )
      Plaintiff-Appellant,             )
                                       )
                                                                 ON APPEAL FROM THE
 v.                                    )
                                                                 UNITED STATES DISTRICT
                                       )
                                                                 COURT     FOR      THE
 UNIVERSITY OF DAYTON; JANE ROE; )
                                                                 SOUTHERN DISTRICT OF
 NATIONAL        CENTER     FOR HIGHER )
                                                                 OHIO
 EDUCATION RISK MANAGEMENT; and )
 DANIEL C. SWINTON,                    )
                                                                             OPINION
                                       )
      Defendants-Appellees.            )


       BEFORE:         KEITH, STRANCH, and DONALD, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Plaintiff John Doe alleges that he was wrongfully

suspended from the University of Dayton after Defendant Jane Roe accused him of sexual assault.

He filed Title IX, breach of contract, and tort claims against the University, Roe, and the

investigator the University hired. The district court dismissed all claims. For the reasons explained

below, we AFFIRM.

                                       I. BACKGROUND

       On September 4, 2016, Doe and Roe had a sexual encounter. That night, Roe reported to

University police that she had been sexually assaulted.

       The University’s Sexual Harassment Code of Conduct strictly prohibits all forms of sexual

harassment, defined to include sexual assault and any other sexual conduct without “effective

consent.” According to the Student Handbook, “[e]ffective consent is granted when a person
No. 18-3339, Doe v. Univ. of Dayton


freely, actively and knowingly agrees at the time to participate in a particular sexual act with a

particular person.” Standard punishments for a violation “range from educational interventions to

expulsion.”

       Just over a week after the incident, the University sent Doe a Notice of Investigation,

attaching a copy of Roe’s complaint and explaining the process and Doe’s rights, as laid out in the

Student Handbook. The notice stated that the matter had been referred to an external investigator,

Defendant Daniel Swinton, an employee of Defendant National Center for Higher Education Risk

Management (NCHERM). According to the Handbook, Swinton’s role was to compile an

investigatory report and determine whether, when “all of the evidence is viewed in a light most

favorable to [the complainant,] . . . there is probable cause to believe that the respondent might

have violated” University policy.

       Swinton interviewed Doe, Roe, seven other Dayton students, and one of the University

officers who responded to Roe’s initial call. He then drafted a report containing interview notes,

written statements from Doe and Roe, police incident reports, text messages between Doe and Roe,

pictures of the locations, and the results of a polygraph exam provided by Doe. Based on that

evidence, Swinton first determined that there was no probable cause to believe Doe used force to

obtain consent or that Roe was incapacitated and so unable to consent. He then performed a

consent analysis and concluded that, “when viewing the facts in a light most favorable to the

complainant, . . . probable cause exists to believe that 1) non-consensual sexual intercourse,

2) non-consensual sexual contact, and 3) sexual harassment may have occurred in violation of

University of Dayton policies.”




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No. 18-3339, Doe v. Univ. of Dayton


       The matter was then referred for a hearing before the University Hearing Board. The Board

reviewed Swinton’s report and heard testimony from Roe, Doe, and other witnesses. Based on

that evidence, the Board concluded that Doe had violated the Code of Conduct by committing

sexual harassment, reasoning as follows:

       The University Hearing Board voted that they believed it was more likely than not
       that [Roe’s] version of events in the bedroom occurred specific to non-consensual
       sexual intercourse. They referenced the agreement of both parties that the
       complainant indicated she did not think she wanted to do this and indicated that
       they believed by preponderance of the evidence that [Roe’s] version of when and
       how many times it was said more likely than not occurred.

       With regards to non-consensual sexual contact, the board determined that the
       kissing was consistently described by both parties and was inconsequential
       compared to the non-consensual sexual intercourse. The board made a finding of
       not responsible on this matter given they fell at 50/50 on the scale of preponderance.

(R. 23-37, Hr’g Bd. Notice of Action, PageID 1516) Doe was suspended for a year and a half,

until the end of the following school year.

       Doe appealed the decision to the University’s Judicial Review Committee. The Committee

identified one error that had occurred at the hearing: neither Doe nor Roe had been given the

opportunity to submit to the Board questions relating to live testimony given at the hearing. The

Student Handbook provides that “[d]uring the course of the hearing, the board will allow both

parties to submit questions they would like to have asked of the other or to key witnesses.” Parties

are to be given 10 to 15 minutes to prepare “questions addressing information that occurred during

the hearing,” and then the “[t]he board determines the questions they will ask by considering the

relevance of the content to their purpose, their need for the information in order to make a decision

and the appropriateness of the question.” To remedy the error, the Committee gave both Doe and

Roe the opportunity to listen to a recording of the hearing, after which they had an hour to draft

questions for the Board to pose to the witnesses. Doe did so, providing two and a half pages of




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No. 18-3339, Doe v. Univ. of Dayton


questions. The Board reconvened the following day. According to a letter the Associate Dean of

Students sent to Doe, they “carefully reviewed all questions submitted and determined that none

of those questions would provide additional information that could alter the determinations already

made with regards to a code violation of sexual harassment.” That determination was in turn

presented to the Judicial Review Committee, which “indicated that the original decision by the

University Hearing Board in this case stands.” The previously imposed suspension became

effective that day.

       Doe then filed the instant suit, bringing claims against the University, Roe, NCHERM, and

Swinton for violation of Title IX, breach of contract, promissory estoppel, negligence, defamation,

intentional infliction of emotional distress, and declaratory judgment. He alleges that the sexual

encounter was consensual and that Roe fabricated the assault claim “to avoid discipline related to

her work.” As an employee of Dayton’s athletic department, Roe was not permitted to engage in

sexual conduct with Doe, a student athlete. Doe also argues that the campus environment was

hostile to men and that the investigatory and Board proceedings were biased and procedurally

deficient. He avers that as a result, he suffers from post-traumatic stress disorder, anxiety, and

depression; was denied admission to another university; and lost an opportunity to be recruited by

a coach at another school. The district court dismissed all claims. Doe appeals as to all claims

and all Defendants.

                                          II. ANALYSIS

       We review a district court order granting a motion to dismiss de novo. See Hill v. Snyder,

878 F.3d 193, 203 (6th Cir. 2017). In doing so, we construe the complaint in the light most

favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint

contains “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550


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No. 18-3339, Doe v. Univ. of Dayton


U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. Our review of factual allegations encompasses

exhibits attached to the complaint, which may be considered without converting the “motion to

dismiss into one for summary judgment.” Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 907

F.3d 948, 953 (6th Cir. 2018).

          As a preliminary matter, we note that Doe concedes that Dayton, a private university, is

not a state actor. Dayton is therefore not subject to suit under 42 U.S.C. § 1983, see Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 305 (2001), and whether the

procedures employed in Doe’s hearing would constitute due process of law is not before us. We

ask only whether Defendants’ behavior violated Title IX, breached applicable contracts, or gave

rise to tort liability.

          A.     Title IX Claims

          Title IX provides that, subject to certain exceptions not relevant here, “[n]o person in the

United States shall, on the basis of sex, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). “Title IX is enforceable through a judicially implied

private right of action, through which monetary damages are available.” Doe v. Miami Univ., 882

F.3d 579, 589 (6th Cir. 2018) (quoting Klemencic v. Ohio State Univ., 263 F.3d 504, 510 (6th Cir.

2001)).

          We have recognized at least four theories of Title IX liability in cases alleging gender bias

in university disciplinary proceedings:         (1) erroneous outcome, (2) selective enforcement,

(3) deliberate indifference, and (4) archaic assumptions. Id. We have also recognized the viability

of a fifth theory, hostile environment, in other contexts, though not in the context of a suit related




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No. 18-3339, Doe v. Univ. of Dayton


to disciplinary proceedings. Id. (citing Doe v. Claiborne County, 103 F.3d 495, 515 (6th Cir.

1996)). Doe pursues four of these five theories—all but archaic assumptions.

               1.      Erroneous Outcome

       To present a viable claim under the erroneous outcome theory, a plaintiff must allege “facts

sufficient to (1) ‘cast some articulable doubt’ on the accuracy of the disciplinary proceeding’s

outcome, and (2) demonstrate a ‘particularized causal connection between the flawed outcome and

gender bias.’” Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018) (ellipsis omitted) (quoting Miami

Univ., 882 F.3d at 592). Because Doe’s core argument is that he was subject to unfair procedures

that were biased against men, this is the Title IX theory that most naturally fits his allegations.

       We assume for purposes of argument that Doe has satisfied the first requirement and

proceed immediately to the second prong. To allege a particularized causal connection, we have

generally required plaintiffs to point to some hint of gender bias in their own disciplinary

proceedings. Thus, for example, it is not enough to allege that in all of one university’s sexual

assault investigations during the relevant period, “the accused was male and was ultimately found

responsible.” Doe v. Cummins, 662 F. App’x 437, 453 (6th Cir. 2016). This prong is satisfied,

however, when that same claim is combined with other troubling allegations, including both an

affidavit that “describes a pattern of the University pursuing investigations concerning male

students, but not female students” and a showing that in the plaintiff’s own case, the university

“initiated an investigation into him but not” his female accuser. Miami Univ., 882 F.3d at 593. (In

that case, there was an allegation that the accuser herself violated the University’s policies by

kissing the plaintiff when he was “inebriated to the extent that he could not consent.” Id. at 591.)

Similarly, alleging that a university adopted certain procedures due to pressure from the federal

government is not enough on its own, see Cummins, 662 F. App’x at 452–53, but suffices when

combined with an allegation that the plaintiff’s hearing body disagreed with the findings of the


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No. 18-3339, Doe v. Univ. of Dayton


initial investigator based on “exclusively female testimony,” even though the reason given for

discrediting the men (membership in the accused’s fraternity) applied equally to the women (all

members of the accuser’s sorority), Baum, 903 F.3d at 586.

        In this case, Doe contends that three of his allegations, when considered in their entirety,

demonstrate a comparable causal connection to gender bias.1 First, in 2014, Dayton entered into

a resolution agreement with the Department of Education’s Office of Civil Rights, agreeing to

modify its policies for handling complaints. Doe alleges that his discipline was motivated in part

by a desire to avoid further federal scrutiny and negative publicity. The helpfulness of this 2014

agreement to Doe’s case is questionable. According to the news article Doe attached to his

complaint describing the resolution agreement, “none of the Title IX complaints [spurring the

resolution agreement] involved sexual assault.” The policy changes mandated by the resolution

agreement—about the role of the Title IX coordinator, the use of informal resolution processes,

the right to counsel, and the conduct of a hearing when the complainant and respondent cannot be

in the same room—are not the same policies that Doe alleges were indicative of gender bias in his

hearing. But even if we assume the agreement is both relevant and indicative of bias, Doe fails to

draw any connection between that agreement and his hearing two years later. He does not allege,

for example, that the University or the individuals involved in his hearing were facing substantial

public pressure or outcry in the weeks leading up to his hearing—facts the Second Circuit found

persuasive in Doe v. Columbia University, 831 F.3d 46, 57–58 (2d Cir. 2016). The 2014 agreement

therefore does not provide the necessary “particularized” evidence of a causal connection between

gender bias and the outcome of Doe’s hearing. See Cummins, 662 F. App’x at 452–53.



1
 In Doe’s opening brief, he raised a fourth allegation, related to statistics cited by another Board member in her
doctoral thesis. In his reply brief, he acknowledges that the individual mentioned did not serve on Doe’s Hearing
Board and so withdraws the argument.


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No. 18-3339, Doe v. Univ. of Dayton


       Next, Doe argues that one member of the Hearing Board revealed gender bias by

supporting the film The Hunting Ground, which Doe alleges portrays campus sexual assault

inaccurately. Just over a year before Doe’s hearing, the Board member posted on Facebook that

the film was a “[m]ust see,” indicated it was unacceptable for a fraternity to be known as the

“roofie frat,” and agreed with a response implying that men should masturbate instead of “hav[ing]

sex with unconscious women.” A single comment made at a substantial temporal remove from

Doe’s hearing is of limited value in discerning discrimination—especially when, as here, the

discriminatory aspect of the statement is difficult or impossible to discern. It is not problematic

for a Board member to express distaste for sex with unconscious partners or for using drugs to

obtain consent—both clear violations of Dayton’s “effective consent” policy. And while Doe has

alleged that the film is based on inaccurate statistics and discredited accounts, those flaws do not

plausibly suggest gender bias in a supporter of the film who was not necessarily aware of the

criticisms.

       Finally, Doe highlights his allegations that, “[u]pon information and belief, in virtually all

cases of campus sexual misconduct by Dayton [sic], the accused student is male and the accusing

student is female,” and “[u]pon information and belief, Dayton possesses additional documentation

evidencing their refusal to discipline female students who were alleged to have sexually assaulted

male students.” As previously explained, the fact that sexual assault proceedings have been

brought only against male students is not in and of itself sufficient to infer gender bias. Cummins,

662 F. App’x at 453–54. And, more fundamentally, these generalized, conclusory statements,

devoid of underlying factual support, do not suffice to allege a particularized causal connection

between gender bias and Doe’s suspension. See Baum, 903 F.3d at 585.




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No. 18-3339, Doe v. Univ. of Dayton


        In sum, Doe references events that are temporally removed from his hearing and raise little

or no inference of discrimination; he then augments those allegations with speculation about

evidence he might uncover later in the proceedings. Even considering all Doe’s allegations in

combination, they do not show that gender bias had some causal connection to the outcome of his

disciplinary hearing. The erroneous outcome theory fails.

                2.      Hostile Environment

        We next consider whether Doe has made out a Title IX claim under the hostile environment

theory. Such a claim “is analogous to a Title VII hostile-environment claim.” Miami Univ., 882

F.3d at 590. To succeed, Doe must allege “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 [his]’ educational environment.” Id. (brackets omitted) (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

        Doe points to a series of film screenings and on-campus events that he argues amounted to

a “campaign of intimidation and insult which altered the educational environment of males like

Doe by portraying them as sexual deviants.” We are dubious that programming highlighting

sexual violence, even when focused on sexual violence committed by men, could create a hostile

environment absent unusual circumstances. After all, though Doe vigorously disputes how often

sexual violence on college campuses occurs, he concedes that some women are sexually assaulted

on college campuses. One instance of sexual assault is too many, and it is logical and appropriate

for universities to host events confronting an acknowledged problem. Indeed, such actions appear

to be mandated by federal regulation. See 34 C.F.R. § 668.46(j) (requiring each covered university

to “include in its annual security report a statement of policy that addresses the institution’s

programs to prevent dating violence, domestic violence, sexual assault, and stalking”).




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No. 18-3339, Doe v. Univ. of Dayton


        The aspects of the events that Doe takes issue with do not rise to the level necessary for a

hostile environment claim. Making available or distributing allegedly inaccurate information does

not equate to intimidation or insult.     Using male pronouns when highlighting problematic

statements such as “he said if I really loved him, I would have sex with him,” is not equivalent to

accusing all male students of committing or condoning sexual assault. Nor does highlighting

sexual assault of women by men negate the possibilities that women can commit sexual assault or

that men can be sexually assaulted. Indeed, the first line of the description of sexual harassment

in Dayton’s Handbook states that the offense “[c]an be committed by a man or woman against a

person of the same or opposite sex.” Doe therefore does not plausibly allege that the events hosted

at Dayton crossed the line into “intimidation, ridicule, and insult.” Miami Univ., 882 F.3d at 590

(quoting Harris, 510 U.S. at 21).

        Moreover, Doe fails to allege that he was even aware that these events took place while he

was a student at Dayton, much less that they meaningfully changed the conditions of his

educational environment. We hesitate to deem an environment hostile to a plaintiff when “there

is no evidence that plaintiff was aware” of what occurred. Abeita v. TransAmerica Mailings, 159

F.3d 246, 249 n.4 (6th Cir. 1998). Though Doe was not required to allege that he personally

attended the events or even that he knew about them at the time they occurred, see Jackson v.

Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999), he had to connect those events to his personal

educational environment. The conclusory allegation that these events “interfere[] with males’

ability to participate in or benefit from various activities including learning on campus” is

insufficient.

        Doe also appears to argue that his hearing and ultimate suspension interfered with his

ability to participate in campus life. But we have already explained that “allegations of gender




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No. 18-3339, Doe v. Univ. of Dayton


bias in the University’s sexual-assault disciplinary process” do not constitute the sort of

intimidation, ridicule, or insult that can sustain a hostile environment claim. Miami Univ., 882

F.3d at 590. Doe’s criticisms of that process have already been analyzed in their proper place,

under the erroneous outcome rubric.

               3.      Deliberate Indifference

       Doe next advances the deliberate indifference theory. Here, he must allege that the school

“acts with deliberate indifference to known acts of harassment in its programs or activities” and

that the harassment “is so severe, pervasive, and objectively offensive that it effectively bars the

victim’s access to an educational opportunity or benefit.” Davis v. Monroe Cty. Bd. of Educ., 526

U.S. 629, 633 (1999). “[W]e have held that to plead a Title IX deliberate-indifference claim, ‘the

misconduct alleged must be sexual harassment,’ not just a biased disciplinary process.” Baum,

903 F.3d at 588 (quoting Miami Univ., 882 F.3d at 591). Thus, to the extent this claim is premised

on procedural flaws in the proceedings themselves, it fails.

       Doe argues that his deliberate indifference claim is also based on the programming about

sexual violence that formed the basis for his hostile environment claim. He does not, however,

allege that the University “had actual knowledge” about any sexual harassment that occurred at

those events. Tumminello v. Father Ryan High Sch., Inc., 678 F. App’x 281, 284 (6th Cir. 2017).

And, for the same reasons described above in the hostile environment context, permitting campus

events discussing sexual assault—even with some inaccuracies—is not “severe, pervasive, and

objectively offensive” harassment. Davis, 526 U.S. at 633.

               4.      Selective Enforcement

       Doe’s final Title IX theory is selective enforcement.         “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


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No. 18-3339, Doe v. Univ. of Dayton


at 452. Doe has not identified any woman accused of sexual assault at Dayton University who

was not referred to disciplinary proceedings. Instead, he returns to his allegation that, “[u]pon

information and belief, Dayton possesses additional documentation evidencing their refusal to

discipline female students who were alleged to have sexually assaulted male students.” Doe

provides no factual content to underpin this allegation. The bare allegation, unsupported by facts,

does not suffice to state a claim. See 16630 Southfield L.P. v. Flagstar Bank, F.S.B., 727 F.3d 502,

506 (6th Cir. 2013) (“[T]he plaintiffs have not identified any similarly situated individuals whom

[the defendant] treated better. They have merely alleged their ‘belief’ that such people exist. These

‘naked assertions devoid of further factual enhancement’ contribute nothing to the sufficiency of

the complaint.” (quoting Iqbal, 556 U.S. at 678)).

       In sum, Doe has not stated a claim for a violation of Title IX under any of these four

theories. The district court properly dismissed Doe’s Title IX claims.

       B.      Contract Claims

       Doe next alleges that Dayton, Swinton, and NCHERM breached applicable contracts and

the implied covenant of good faith and fair dealing. The parties do not dispute that these state law

claims are analyzed under Ohio law.

               1.      Breach of Contract Against Dayton

       “A cause of action for breach of contract requires the claimant to establish the existence of

a contract, the failure without legal excuse of the other party to perform when performance is due,

and damages or loss resulting from the breach.” Lucarell v. Nationwide Mut. Ins. Co., 97 N.E.3d

458, 469 (Ohio 2018). The parties agree that the relationship between Doe and Dayton is

contractual and that the Student Handbook lays out the contract terms. See Behrend v. State, 379

N.E.2d 617, 620 (Ohio Ct. App. 1977) (“[W]hen a student enrolls in a college or university, pays

his or her tuition and fees, and attends such school, the resulting relationship may reasonably be


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No. 18-3339, Doe v. Univ. of Dayton


construed as being contractual in nature.”). We therefore ask whether Dayton failed to perform

on the contract.

       Our review of Dayton’s actions is limited, recognizing that “contracts for private education

have unique qualities and must be construed to allow the institution’s governing body to meet its

educational and doctrinal responsibilities.” Valente v. Univ. of Dayton, 438 F. App’x 381, 384

(6th Cir. 2011) (brackets omitted) (quoting Ray v. Wilmington Coll., 667 N.E.2d 39, 42 (Ohio Ct.

App. 1995)). We “will not interfere in these matters in the absence of a clear abuse of discretion.”

Schoppelrei v. Franklin Univ., 228 N.E.2d 334, 336 (Ohio Ct. App. 1967). “In confronting

challenges to private school disciplinary proceedings, the appropriate question is thus ‘whether the

proceedings fell within the range of reasonable expectations of one reading the relevant rules, an

objective reasonableness standard.’” Faparusi v. Case W. Reserve Univ., 711 F. App’x 269, 277

(6th Cir. 2017) (quoting Pierre v. Univ. of Dayton, 143 F. Supp. 3d 703, 713 (S.D. Ohio 2015)).

       Doe’s broad argument is that his proceedings were unfair and so the University breached

general Handbook guarantees such as “ensur[ing] that respondents . . . are treated fairly in the

University’s processes.” In light of the governing objective standard, we may not accept as

sufficient Doe’s subjective claim of an unfair proceeding that reached the wrong conclusion. Nor

may we derive an ideal of fairness by analogy to the procedural protections applicable in courts of

law. See Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017) (“[The University] is not

required to ‘transform its classrooms into courtrooms’ in pursuit of a more reliable disciplinary

outcome.” (quoting Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1250 (E.D. Mich.

1984))). Rather, because our inquiry asks “whether the proceedings fell within the range of

reasonable expectations of one reading the relevant rules,” Faparusi, 711 F. App’x at 277 (citation




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No. 18-3339, Doe v. Univ. of Dayton


omitted), we consider each instance of allegedly unfair conduct by the University and compare it

to the governing Handbook provisions.

       Doe first raises two allegations centering on the Board’s failure to ask witnesses questions

that he proposed. Before his hearing, Doe submitted a list of questions to be asked of each witness.

He alleges that the Board asked none of them, thereby breaching the Handbook’s promise that

“[q]uestions deemed relevant and appropriate by the [Board] will be addressed to the individual

[witness] by the [Board] chair.” He similarly faults the Board’s decision after the Judiciary Review

Committee gave him an opportunity to review the taped proceedings and propose another set of

questions. At that point, the Board declined to reconvene the witnesses and pose the proposed

questions because “none of those questions would provide additional information that could alter

the determinations already made with regards to a code violation of sexual harassment.” Doe

argues this was also error because the Board failed to apply the Handbook’s “relevant and

appropriate” standard.

       The Handbook is divided into sections that lay out expectations for particular topics and

types of proceedings. The section describing Board procedures in sexual harassment cases states

that “the University Hearing Board process and procedure differs for cases that do not involve

sexual harassment and harassment” and provides a cross reference to another section that lays out

“the process for other Codes of Conduct.” The “relevant and appropriate” provision Doe cites is

found in the cross-referenced section governing other conduct violations, not in the harassment-

specific procedures. The harassment procedures do not mention the “relevant and appropriate”

standard. Instead, in harassment cases, “[t]he board determines the questions they will ask by

considering the relevance of the content to their purpose, their need for the information in order to

make a decision and the appropriateness of the question.” The Board’s “approval process is closed




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No. 18-3339, Doe v. Univ. of Dayton


to both parties,” and the Board “is not required to provide rationale for the acceptance or denial of

any question.” The Handbook therefore did not oblige the Board to ask the questions Doe

proposed before the hearing or to explain to Doe why his questions were not asked, and the Board

properly considered its “need for the information in order to make a decision” when it rejected

proposed questions that would not “alter the determinations already made.”

        Next Doe states that Dayton imposed “arbitrary and capricious time limitations on Doe that

were not contained in Dayton’s policies.” He appears to reference the requirement imposed after

the Judiciary Review Committee’s remand that he view the taped proceeding between January 12

and 17 and submit questions within one hour of the viewing. The one-hour limit was more

generous than the Handbook, which allows parties only 10 to 15 minutes to generate questions

from live testimony. As to the selection of dates, the Handbook is silent about how to navigate the

unusual circumstance mandated by the Committee’s remand. The University may therefore have

been obliged to pick a date in good faith. See Shimrak v. Goodsir, 2014-Ohio-3716, ¶ 25 (Ohio

Ct. App. Aug. 28, 2014) (“[I]f a contract is silent on a point, ‘[t]he parties to a contract are required

to use good faith to fill the gap.’” (quoting Burlington Res. Oil & Gas Co. v. Cox, 729 N.E.2d 398,

401 (Ohio Ct. App. 1999))). But see Lucarell, 97 N.E.3d at 469 (“[T]here is no violation of the

implied duty [of good faith] unless there is a breach of a specific obligation imposed by the

contract . . . .”). The University gave Doe three business days to review the hearing and indicated

that it would “allow for an extension if there was good reason.” Doe does not allege that he

provided such a reason and was ignored, so even assuming the University was obliged to act in

good faith, we see no basis to conclude that it failed to do so.




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       Doe also argues that the University breached Handbook provisions by not allowing him to

submit exhibits, call a witness, or access a medical record that Roe referenced during her live

testimony.   These arguments turn in part on the Board’s process for receiving evidence.

Participants are not “permitted to submit information to the Student Conduct System outside of

the investigation.” Doe concedes that he suggested witnesses and provided evidence to Swinton

during the investigation. Pursuant to the Handbook, then, he could call a new witness or introduce

new evidence only under “extraordinary circumstances,” and “[t]he University reserves the right

to determine what is considered an extraordinary circumstance.” Doe does not allege that the

University deemed his circumstances extraordinary, nor (assuming such a challenge would be

permissible) does he explain why the University should have made such a determination. Barring

him from submitting further exhibits or calling new witnesses thus comported with the Handbook.

To the extent Doe wished to call a witness who had already testified to the investigator, the Board

was bound by the Handbook provision that “witnesses are not compelled to participate in the

University Hearing Board process.”

       The argument about Roe’s medical record fails for a similar reason. Because that record

was not included in the investigatory report, it could not be provided to the Board—and so to

Doe—at the hearing. Doe points to no Handbook provisions requiring production of documents

that are referenced during the hearing but were not included in the report, and the University was

not required to have such a process in place. See Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635

(6th Cir. 2005) (noting “unanimous” agreement that “neither rules of evidence nor rules of civil or

criminal procedure need be applied” at disciplinary hearings).




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       In sum, having compared the language of the Handbook to the procedures described in the

complaint, we see no “clear abuse of discretion,” Schoppelrei, 228 N.E.2d at 336, in the

University’s interpretation and implementation of its hearing procedures.

               2.     Breach of Contract Against Swinton and NCHERM

       We next consider Doe’s breach of contract claims against Swinton and NCHERM arising

from the investigation. Doe alleges that, because Dayton hired NCHERM and its employee

Swinton to perform the Title IX investigation, there must have been a contract between them, the

contract must have incorporated the terms of the Handbook and applicable federal law, and Doe

must have been an intended third-party beneficiary of the contract.

       We hesitate to accept the proposition that a plaintiff may plead upon information and belief

not only that a contract exists but also what its terms would be and that it would confer upon him

the rights of a third-party beneficiary. But even if such pleading is permissible, Doe must allege

some action by NCHERM or Swinton that breached the alleged contract terms. The one action

Doe identified in his opening brief is Swinton’s treatment of Doe’s proposed polygraph evidence.

The portion of Swinton’s report discussing the polygraph states:


       Before briefly reviewing the results of the polygraph examination, it may be helpful
       to provide some context as to its reliability and efficacy. Polygraph examinations
       typically consist[] of a series of control questions (in this case, seven) to establish
       a baseline, with a smaller number of key questions (in this case, three) pertinent to
       the issue posed for comparison. The American Psychological Association
       encourages people to view them skeptically. Additionally, most courts do not allow
       their use in proceedings given their lack of reliability and efficacy. Polygraph
       examinations often are only able to test whether a person believes they are telling
       the truth, not whether they are actually telling the truth. As such, using polygraphs
       for probative purposes is problematic.
       [Doe] privately arranged for a polygraph examination and presented the results to
       the investigators. The examiner asked three issue-specific questions, which the
       examiner opines were answered by [Doe] in a manner “indicative of truthfulness”:




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No. 18-3339, Doe v. Univ. of Dayton


               Q: Did [Roe] take off her own pants for sex[?]
               A: Yes
               Q: Did you [in] any way force [Roe] to have sex of any kind?
               A: No
               Q: Did [Roe] in any way object to engaging in sex act[s] with you?
               A: No
       [Doe] seems to have selected a well-respected professional to perform the
       polygraph exam and it seems to have been performed in accordance with
       professional standards. The exam is a piece of evidence that could, at the discretion
       of the decision-maker, serve to assist with [Doe]’s credibility, but the exam should
       not be viewed as proof of [Doe]’s truthfulness or of the veracity of [Doe]’s
       statements.

(R. 23-34, Investigation Report, PageID 1442–43) Swinton’s duty under the Handbook was to

“compile all of the evidence.” He presented Doe’s polygraph evidence to the Board in a manner

that described both its potential usefulness and its limitations—and, in so doing, was more

generous to Doe than a federal court would have been. See United States v. Sherlin, 67 F.3d 1208,

1216 (6th Cir. 1995) (“[U]nilaterally obtained polygraph evidence is almost never admissible

under Evidence Rule 403.” (quoting Conti v. Comm’r, 39 F.3d 658, 663 (6th Cir. 1994))). Doe

has not alleged that Swinton made any factual errors in his presentation of the polygraph evidence.

To the extent Doe takes issue with Swinton’s conclusion that the polygraph was not conclusive,

Swinton was required to view the evidence “in a light most favorable to [Roe].” He did not breach

a contractual obligation to Doe by doing so.

       In Doe’s reply brief, he raises a new argument about the omission of facts favorable to Doe

from Swinton’s report. Doe has likely forfeited this argument by failing to raise it in his opening

brief and then referencing it only briefly on reply. See Tyson v. Sterling Rental, Inc., 836 F.3d

571, 580 (6th Cir. 2016). But even if the argument is properly before us, it suffers from the same

infirmity as the polygraph argument. Swinton included the facts favorable to Doe—about Roe’s

intoxication and flirtatiousness, the timeline, and Doe’s lack of familiarity with Roe’s apartment—

in his report. Swinton was not required to draw Doe’s preferred conclusions from that evidence;


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No. 18-3339, Doe v. Univ. of Dayton


to the contrary, as already explained, he was required to view the evidence in the light most

favorable to Roe.

       We therefore find no basis to conclude that Swinton or his employer committed a breach

of contract.

               3.      Breach of Covenant of Good Faith and Fair Dealing

       Doe next claims that Dayton, NCHERM, and Swinton breached the implied covenant of

good faith and fair dealing. This claim invokes the rule, recognized in Ohio law, that “[i]n addition

to a contract’s express terms, every contract imposes an implied duty of good faith and fair dealing

in its performance and enforcement.” Lucarell, 97 N.E.3d at 469. But as the Ohio Supreme Court

held just last year, “there is no independent cause of action for breach of the implied duty of good

faith and fair dealing apart from a breach of the underlying contract.” Id.; see also Ne. Ohio Coll.

of Massotheraphy v. Burek, 759 N.E.2d 869, 875 (Ohio Ct. App. 2001) (same). Because the

Defendants did not breach contract terms or otherwise act in bad faith, there is no independent

basis to maintain this cause of action for breach of the implied covenant.

       In sum, the University, Swinton, and NCHERM adhered to the procedures laid out in the

Handbook. Doe argues that those procedures are themselves flawed, but his dissatisfaction does

not give rise to a claim for breach of contract. The district court properly dismissed all Doe’s

contract claims.

       C.      Tort Claims

       We turn next to Doe’s tort claims. As with the claims for breach of contract, these claims

are creatures of state law analyzed pursuant to the decisions of Ohio courts.




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No. 18-3339, Doe v. Univ. of Dayton


               1.      Promissory Estoppel and Negligence

       Doe argues the district court should not have dismissed his promissory estoppel and

negligence claims against Dayton, NCHERM, and Swinton.

       Though these two claims have distinct elements, Doe’s allegations as to each suffer from

the same flaw. The first element of a promissory estoppel claim is a “clear and unambiguous”

promise. Cohen & Co. v. Messina, 492 N.E.2d 867, 872 (Ohio Ct. App. 1985). The first element

of a negligence claim is “the existence of a duty.” Armstrong v. Best Buy Co., 788 N.E.2d 1088,

1090 (Ohio 2003). In this case, the promises made and duties owed are found in the terms of the

Handbook and in Title IX itself.

       Claimed violations of Handbook terms have already been analyzed in their proper place,

as potential breaches of contract. See O’Neill v. Kemper Ins. Cos., 497 F.3d 578, 583 (6th Cir.

2007) (“In Ohio, ‘where the parties have an enforceable contract and merely dispute its terms,

scope, or effect, one party cannot recover for promissory estoppel.’” (alterations omitted) (quoting

Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 181 (6th Cir. 1996))); Bowman v.

Goldsmith Bros. Co., 109 N.E.2d 556, 557 (Ohio Ct. App. 1952) (“[A]n action of tort for

negligence cannot be maintained unless the defendant’s conduct constituted the breach of a duty

imposed by law, apart from it being a breach of an obligation created by agreement of the parties,

either express or implied.”). There is no dispute that the Handbook is a contract, so Doe’s response

that these claims are pled in the alternative to his contract claims does not rescue them.

       Claimed violations of Title IX have likewise been analyzed in their proper place, under

recognized Title IX rubrics—not as freestanding tort claims. See Horner ex rel. Horner v. Ky.

High Sch. Athletic Ass’n, 206 F.3d 685, 691 (6th Cir. 2000) (“The Supreme Court rejected the use

of agency or negligence principles to render the school district liable for monetary damages under

Title IX.” (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998))); see also Stiles


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No. 18-3339, Doe v. Univ. of Dayton


v. Grainger County, 819 F.3d 834, 849 (6th Cir. 2016) (“Title IX authorizes suit only against the

school itself and not individual administrators . . . .”).

         The promissory estoppel and negligence claims were therefore properly dismissed.

                  2.       Defamation

         Doe also brings defamation claims against Roe.2 Under Ohio law, a plaintiff alleging

defamation must show: “(1) that a false statement of fact was made, (2) that the statement was

defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a

proximate result of the publication, and (5) that the defendant acted with the requisite degree of

fault in publishing the statement.” Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio

2012). Absolute and qualified privilege are recognized defenses to defamation, see M.J. DiCorpo,

Inc. v. Sweeney, 634 N.E.2d 203, 209 (Ohio 1994), and truth is an absolute defense, see McPeek

v. Leetonia Italian-Am. Club, 882 N.E.2d 450, 454–55 (Ohio Ct. App. 2007).

         Doe does not dispute that Roe’s statements made in preparation for and during the

disciplinary hearing are entitled to absolute immunity. See Savoy v. Univ. of Akron, 15 N.E.3d

430, 435–36 & n.3 (Ohio Ct. App. 2014) (affording absolute privilege to statements made in the

context of university disciplinary proceedings). Instead, he focuses on Roe’s alleged statements

to six friends and roommates that Doe sexually assaulted her. Private statements to friends are not

the type of utterances commonly thought of as giving rise to defamation claims. See, e.g., Hustler

Magazine v. Falwell, 485 U.S. 46, 47 (1988) (parody in a national magazine); Garrison v.

Louisiana, 379 U.S. 64, 65 (1964) (statement at a press conference); N.Y. Times Co. v. Sullivan,



2
  The district court stated in a footnote, citing Caci v. Laborers International Union, No. 97-CV-0033A, 2000 WL
424199, at *1–2 (W.D.N.Y. Mar. 31, 2000), aff’d sub nom. Panczykowski v. Laborers’ Int’l Union, 2 F. App’x 157
(2d Cir. 2001), that “[i]t is entirely conceivable that Plaintiff[’]s state-law claims against Roe are pre-empted, given
that they contradict the findings of the process Doe contracted for, under the umbrella of Title IX, and resolution of
their truthfulness requires re-opening the Title IX process.” Roe does not advance this argument on appeal, so we do
not decide the issue here.


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No. 18-3339, Doe v. Univ. of Dayton


376 U.S. 254, 256 (1964) (full-page advertisement in a national newspaper). We do not lightly

apply a framework commonly applied to public statements about third parties in this most personal

of contexts: a conversation with intimates about your own possible sexual assault. Nor do we

disregard the risk that victims of sexual assault could be dissuaded from sharing their

experiences—and so from seeking support, justice, and treatment—by looming defamation suits.

       Ohio law is capable of this task. Because these statements to friends do not bear a

“reasonable relation” to the disciplinary proceedings, Surace v. Wuliger, 495 N.E.2d 939, 943

(Ohio 1986), we apply Ohio’s test for qualified privilege. The elements of qualified privilege “are

fully satisfied by showing that the relationship of the parties to the communication is ‘such as to

afford a reasonable ground for supposing an innocent motive for giving information and to deprive

the act of an appearance of officious intermeddling in the affairs of others.’” McCartney v. Oblates

of St. Francis de Sales, 609 N.E.2d 216, 224 (Ohio Ct. App. 1992) (emphasis omitted) (quoting

Hahn v. Kotten, 331 N.E.2d 713, 720 (Ohio 1975)). Roe described (albeit, according to the

complaint, incorrectly) an incident that personally involved her to a small number of friends and

roommates who shared an interest in her health and well-being. Doe does not allege that she shared

that description widely. Roe’s version of the events, moreover, bears many similarities to Doe’s—

Doe agrees the sexual encounter occurred, and he told the interviewer that Roe said, “I don’t think

I want to do this,” as the encounter was ending. At the hearing, the Board determined that Roe’s

description of events was more likely than not to be true. See McPeek, 882 N.E.2d at 454–55.

Doe must therefore allege actual malice. See McCartney, 609 N.E.2d at 224. To do so, he relies

on a legal conclusion in his complaint, that “Roe made her false and non-privileged statements

negligently, with knowledge of their falsity, or with reckless disregard for their truth or falsity.”




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No. 18-3339, Doe v. Univ. of Dayton


“[W]e ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S.at 555).

       Under these circumstances, the district court properly dismissed the defamation claims.

               3.       Intentional Infliction of Emotional Distress

       Doe next argues that the district court should not have dismissed his claim against all

Defendants for intentional infliction of emotional distress. To state such a claim under Ohio law,

Doe must allege that:

       (1) the defendant intended to cause, or knew or should have known that his actions
       would result in serious emotional distress; (2) the defendant’s conduct was so
       extreme and outrageous that it went beyond all possible bounds of decency and can
       be considered completely intolerable in a civilized community; (3) the defendant’s
       actions proximately caused psychological injury to the plaintiff; and (4) the
       plaintiff suffered serious mental anguish of a nature no reasonable person could be
       expected to endure.

Morrow v. Reminger & Reminger Co., 915 N.E.2d 696, 712–13 (Ohio Ct. App. 2009).

       This test is not satisfied merely by showing “that the defendant has acted with an intent

which is tortious or even criminal”; rather, Ohio courts find liability “only where the conduct has

been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at

713–14 (quoting Yeager v. Local Union 20, Teamsters, 453 N.E.2d 666, 671 (Ohio 1983)). As

described above, Swinton, the University, and NCHERM complied with the requirements of Title

IX and the Student Handbook. Even assuming the procedures were flawed, their conduct is neither

outrageous nor atrocious. See Miami Univ., 882 F.3d at 599 (6th Cir. 2018) (concluding that even

though the plaintiff had plausibly alleged an erroneous outcome under Title IX, the conduct did

not “shock the conscience” for purposes of a due process claim). Roe instigated sexual harassment

proceedings after discussing the incident within her immediate circle of friends; the Board then

found her description of the events more credible than Doe’s. Neither discussing a sexual


                                                -23-
No. 18-3339, Doe v. Univ. of Dayton


encounter with friends—even inaccurately—nor filing a complaint that is ultimately accepted as

more likely than not to be true exceeds the bounds of decency. See Hanly v. Riverside Methodist

Hosp., 603 N.E.2d 1126, 1132 (Ohio Ct. App. 1991) (publishing that the plaintiff was discharged

for sexual harassment, even if it exceeded the bounds of qualified privilege, “was not so extreme

and outrageous to support a claim for intentional infliction of emotional distress”). The district

court properly dismissed this claim.

        D.        Declaratory Judgment

        Last of all, Doe argues that his declaratory judgment claim against Dayton for violation of

the Handbook and Title IX should not have been dismissed. The Declaratory Judgment Act is

procedural in nature and “does not create an independent cause of action” that can be invoked

absent some showing of an articulated legal wrong. Davis v. United States, 499 F.3d 590, 594 (6th

Cir. 2007). Because Doe’s other claims have been dismissed, his declaratory judgment claim

likewise fails.

                                       III. CONCLUSION

        For the foregoing reasons, the district court’s decision dismissing all claims is

AFFIRMED.




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