and Submitted December 6, 2018 Seattle, Washington
Appeals from the United States District Court for the
District of Oregon D.C. Nos. 6:15-cv-02257-MC
6:16-cv-00647-MC Michael J. McShane, District Judge,
Carl Milstein (argued), Sherman Silverstein Kohl Rose &
Podolsky P.A., Moorestown, New Jersey; Marianne Dugan,
Eugene, Oregon; for Plaintiff-Appellant Brandon Austin.
I. Michaels (argued), Eugene, Oregon, for
Plaintiffs-Appellants Dominic Artis and Damyean Dotson.
Scott Reed (argued), Office of the General Counsel,
University of Oregon, Eugene, Oregon; P.K. Runkles-Pearson,
Miller Nash Graham & Dunn LLP, Portland, Oregon; for
Before: Susan P. Graber, M. Margaret McKeown, and Morgan
Christen, Circuit Judges.
panel affirmed the district court's dismissal of a
complaint brought by three male student athletes against the
University of Oregon alleging the University discriminated
against them on the basis of their sex in violation of Title
IX and violated their due process rights in connection with
the University's sexual misconduct proceedings.
the Supreme Court's guidance in Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002), the panel held that
Federal Rule of Civil Procedure 8(a), not the evidentiary
presumption set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), provides the appropriate
standard for reviewing, at the pleading stage, a motion to
dismiss in a Title IX case.
panel affirmed the district court's dismissal of the
Third Amended Complaint because, putting aside mere
conclusory allegations, the complaint failed to make any
claims of discrimination on the basis of sex cognizable under
Title IX. The panel rejected plaintiffs' three theories
under Title IX: selective enforcement, erroneous outcome, and
deliberate indifference. The panel determined that plaintiffs
failed to sufficiently allege that the decision to discipline
them was grounded in gender bias or that the administration
or outcome of the disciplinary proceedings were flawed due to
the student athletes' sex. The panel further determined
that plaintiffs waived their "deliberate
indifference" theory of Title IX liability.
panel held that the student athletes' due process claims
failed because they received constitutional due process
through the University's disciplinary proceedings. The
panel assumed, without deciding, that the student athletes
had property and liberty interests in their education,
scholarships, and reputation as alleged in the complaint.
Nonetheless, the panel held that the student athletes
received the hallmarks of procedural due process: notice and
a meaningful opportunity to be heard.
McKEOWN, CIRCUIT JUDGE.
companion cases concerning campus sexual assault raise an
issue of first impression in this circuit- whether the
McDonnell Douglas evidentiary presumption applies at the
pleading stage in a Title IX case. Following the Supreme
Court's explanation of Title VII's pleading
requirements in Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002), we conclude that Federal Rule of Civil
Procedure 8(a), not McDonnell Douglas, applies at
the motion to dismiss stage. On this basis, we affirm the
district court's dismissal of the Third Amended Complaint
because, putting aside mere conclusory allegations, the