Sheppard v. Visitors of Virginia State University, Docket No. 19-2452, 2021 U.S. App. LEXIS 9670 (4th Cir. Apr. 2, 2021)
04/13/2021Malcolm Sheppard, Student A, and Student B were students at Virginia State University (“VSU”). Student A, Sheppard’s ex-girlfriend, and her friend Student B allegedly took personal items from Sheppard’s dorm room on October 25, 2016. Sheppard decided to retrieve the items himself, which led to an altercation between Sheppard and Student A. Sheppard says he inadvertently pushed Student A while trying to grab the dorm room keys from her, while Student A and Student B alleged Sheppard pushed her several times in from of her dorm room and again in a nearby stairwell. Shortly thereafter, Student A obtained a protective order from the Chesterfield Country General District Court. All three students were referred to the Office of Judicial Affairs: Sheppard for assault, and Students A and B for larceny. OJA held a hearing six days later and found Sheppard responsible for assault. Student A’s hearing was held on April 7, 2017, and she was found responsible for theft. Student B was found not responsible, with her hearing being held in January 2017. Sheppard subsequently filed this lawsuit alleging violations of Title IX, equal protection, and due process. The District Court dismissed the complaint, and the Fourth Circuit affirmed the dismissal.
The Fourth Circuit chose to forgo the Title IX doctrinal tests first articulated in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994). Instead, the Fourth Circuit joined the Seventh, Third, Eighth, and Ninth Circuits in asking merely "do the alleged facts, if true, raise a plausible inference that the university discriminated against the student on the basis of sex?" The Fourth Circuit then went a step further in holding that “on the basis of sex” requires “but-for” causation in Title IX claims alleging discriminatory school disciplinary proceedings. This sets the Fourth Circuit apart from other circuits which have suggested, but not decided, it might be sufficient for sex to be a motivating factor.
The Court held that Sheppard could not show that his gender was the but-for cause of his treatment under VSU’s disciplinary proceedings. Sheppard had argued that the time delay in OJA proceeding against Students A and B in comparison to him showed he was treated differently because of his sex. Sheppard also alleged an OCR investigation found that he had established a prima facie case of discrimination that led to VSU entering into a Resolution Agreement with OCR. However, because Student A had a protective order against Sheppard meant the two were not similarly situated. The Court also noted that VSU did ultimately take action against Students A and B. Accordingly, there was no evidence of discrimination.
For largely the same reasons Sheppard’s Title IX claim failed, so too did his equal protection claim. Sheppard’s due process claim failed on the basis of qualified immunity. Under Virginia law, Debose was entitled to qualified immunity because there was no clearly established right to continued enrollment in higher education.CATEGORY: Due Process