Education: Ex-law professor fails to enjoin Title IX investigation

Where a former George Mason law professor failed to demonstrate that he was likely to prevail on his First Amendment retaliation claim, the university is not required to stop its Title IX investigation of a complaint filed by a former student.

Background

This action stems from competing Title IX sexual harassment and retaliation complaints: the first was filed against plaintiff Joshua Wright by his former student, Elyse Dorsey, and the second was filed by Wright against Dorsey. George Mason dismissed plaintiff’s complaint while proceeding with an investigation into Dorsey’s claims.

As a result, plaintiff filed this multi-count suit. Plaintiff also seeks a preliminary injunction to enjoin defendants from continuing their Title IX investigation. Separately, defendants have filed a motion to dismiss the complaint.

Title IX

To state a deliberate indifference claim under Title IX, a plaintiff must plausibly allege that “(1) the educational institution receives federal funds, (2) the plaintiff was subjected to harassment based on [his] sex, (3) the harassment was sufficiently severe and pervasive to create a hostile environment in an educational program or activity, and (4) there is a basis to impute liability to the institution.” Plaintiff fails to sufficiently allege the second, third and fourth elements.

Next, a plaintiff can state such a selective­enforcement claim “by plausibly showing that a similarly situated person of the opposite sex was treated more favorably.” Here, the court does not find that plaintiff has plausibly stated that Dorsey is a proper comparator for the purposes of his selective-enforcement claim. Plaintiff has also failed to plausibly allege that his sex was a but-for cause of George Mason’s decisions.

Equal protection

As with the selective enforcement claim, plaintiff’s equal protection claims also fail because plaintiff has not plausibly alleged either that (1) he and Dorsey were similarly situated or (2) that the University’s decision to dismiss his Title IX complaint while proceeding with its investigation of Dorsey’s complaint was because of his sex. Further, the complaint is devoid of any specific allegations that Title IX coordinator Thomas Bluestein himself was motivated by discriminatory animus.

‘Sheppard’

Plaintiff asserts a separate Title IX claim pursuant to Sheppard v. Visitors of Virginia State University, 993 F.3d 230 (4th Cir. 2021). However the complaint makes clear that George Mason’s Title IX investigation into Dorsey’s allegations remains ongoing and there has been no final determination made as to the Title IX proceedings. Accordingly, plaintiff’s Sheppard claim has not yet accrued and is premature.

Due process

Plaintiff concedes that his complaint does not sufficiently allege facts to support this claim. Plaintiff requests leave to amend to allege that he was constructively terminated from his job and effectively forced to resign in violation of the Due Process Clause. But amendment would be futile because Bluestein is entitled to sovereign immunity.

Breach of contract

Plaintiff asserts that George Mason violated its Title IX policy in at least four ways; and because the policy is incorporated by reference into plaintiff’s employment contract, each violation constitutes a breach of the employment contract. Sovereign immunity bars plaintiff’s breach of contract claim because plaintiff failed to comply with the requirements of Virginia Code Ann. § 2.2-814 because he did not present his breach of contract claim to the head of the University.

The court finds that plaintiff fails to establish that serving the letter to George Mason’s legal counsel equates to serving the head of the University. And any amendment would be futile because plaintiff fails to plausibly allege that following his resignation, the University owed any legally enforceable obligation to him pursuant to the terminated employment contract.

First Amendment

Plaintiff alleges that Bluestein violated his First Amendment right to petition his government for redress by accepting Dorsey’s amended Title IX complaint, which charged plaintiff with retaliation for filing his defamation lawsuit against her and Landry. The court finds that plaintiff has plausibly alleged a causal connection between his First Amendment activity and the University’s adverse action. However, because it was not sufficiently clear that by accepting a retaliation claim in a Title IX investigation, Bluestein was violating plaintiff’s First Amendment right, Bluestein is entitled to qualified immunity.

Injunction

Plaintiff also seeks a preliminary injunction to enjoin defendants from continuing their Title IX investigation. The court finds that on the merits of his First Amendment retaliation claim, plaintiff is unable to establish a causal relationship between his protected activity and the University’s conduct. Thus, he is unable to establish a likelihood of success on the merits of his claim.

Plaintiff’s motion for preliminary injunction denied. Defendants’ motion to dismiss granted in part, denied in part.

Wright v. The Rector and Visitors of George Mason University, Case No. 1:24-cv-2, Sept. 19, 2024. EDVA at Alexandria (Giles). VLW 024-3-512. 43 pp.