John Doe v. Regents of the Univ. of Cal.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN DOE, No. 20-55831
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-10385-
PSG-MRW
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; DOES, 1–20,
Defendants-Appellees. OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted October 20, 2021
Pasadena, California

Filed January 11, 2022

Before: Consuelo M. Callahan and Danielle J. Forrest,
Circuit Judges, and Carol Bagley Amon, * District Judge.

Opinion by Judge Callahan

*
The Honorable Carol Bagley Amon, United States District Judge
for the Eastern District of New York, sitting by designation.
2 DOE V. REGENTS OF THE UNIV. OF CAL.

SUMMARY **

Title IX

The panel reversed and vacated the district court’s order
and judgment dismissing a Title IX action brought by John
Doe, a Chinese national graduate student, and remanded for
further proceedings.

Doe alleged that the University of California, Los
Angeles, violated Title IX when it discriminated against him
on the basis of sex in the course of a Title IX disciplinary
proceeding instituted after a former student accused him of
misconduct.

Following Schwake v. Ariz. Bd. of Regents, 967 F.3d 940
(9th Cir. 2020), the panel held that Doe stated a Title IX
claim because the facts alleged in his first amended
complaint, if true, raised a plausible inference that the
university discriminated against him on the basis of sex. The
panel concluded that Doe’s allegations of external pressures
impacting how the university handled sexual misconduct
complaints, an internal pattern and practice of bias in the
University of California and at UCLA in particular, and
specific instances of bias in Doe’s particular disciplinary
case, when combined, raised a plausible inference of
discrimination on the basis of sex sufficient to withstand
dismissal.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 DOE V. REGENTS OF THE UNIV. OF CAL. 3

COUNSEL

Mark M. Hathaway (argued) and Jenna E. Parker, Hathaway
Parker Inc., Los Angeles, California, for Plaintiff-Appellant.

Hailyn J. Chen (argued), Munger Tolles & Olson LLP, Los
Angeles, California, for Defendants-Appellees.

OPINION

CALLAHAN, Circuit Judge:

Based on a former student’s bare allegations of
misconduct, and before beginning a formal Title IX
investigation, the University of California, Los Angeles (the
“University” or “UCLA”) issued an immediate interim
suspension of John Doe 1, a Chinese national graduate
student just months away from completing his Ph.D. in
chemistry/biochemistry. Over five months later, the
University suspended Doe for two years after finding he
violated the University’s dating violence policy by placing
Jane Roe “in fear of bodily injury,” just one of the thirteen
charges the University brought against him. As a result, Doe
lost his housing, his job as a teaching assistant on campus,
his ability to complete his Ph.D., and his student visa.

1
Appellant uses the pseudonyms of “John Doe” and “Jane Roe”
throughout the complaint “to preserve privacy in a matter of [a] sensitive
and highly personal nature.”
4 DOE V. REGENTS OF THE UNIV. OF CAL.

Doe sued the University through The Regents of the
University of California (the “Regents” 2), alleging that it
violated Title IX when it discriminated against him on the
basis of sex in the course of his Title IX disciplinary
proceeding. In granting the Regents’ motion to dismiss, the
district court concluded that Doe’s general allegations were
insufficient to state a Title IX claim under either the
erroneous outcome theory or the selective enforcement
theory. We disagree.

As we clarified in Schwake v. Arizona Board of Regents,
967 F.3d 940, 947 (9th Cir. 2020), the relevant inquiry on a
motion to dismiss a Title IX claim in this context is whether
the alleged facts, if true, raise a plausible inference that the
university discriminated against the plaintiff on the basis of
sex. Therefore, the central question here is whether Doe’s
First Amended Complaint (“FAC”) meets this standard. We
hold that it does. Accordingly, we reverse the district court’s
dismissal and remand.

I.

Because this appeal arises from a motion to dismiss, we
accept as true the well-pleaded allegations contained in the
operative complaint and construe them in the light most
favorable to Doe. Karasek v. Regents of the Univ. of Cal.,
956 F.3d 1093, 1104 (9th Cir. 2020).

2
According to the complaint, The Regents of the University of
California refers to the public corporation that governs and operates the
University of California as a public trust through its 26-member board.
Accordingly, we use singular verbs throughout this opinion, as the
“Regents” refers to a single entity.
 DOE V. REGENTS OF THE UNIV. OF CAL. 5

A. Factual Background.

At all relevant times herein, Doe was a Chinese national
graduate student at UCLA on a student visa pursuing his
Ph.D. in chemistry/biochemistry. He first met then-UCLA
student Jane Roe in a chemistry class during the spring
quarter of 2014, and the two began dating that summer.
Their long-term romantic relationship continued, and the
couple became engaged in December 2016. They planned
to marry after Doe was scheduled to graduate with his
doctorate in June 2017.

However, the relationship ended abruptly in February
2017, after Doe learned that Roe had been unfaithful to him
throughout their relationship. On February 12, Doe sought
to break off his engagement with Roe and the two met briefly
outside Roe’s home. The next morning, by text message, the
pair agreed to meet on campus after Doe completed teaching
his course and after Roe got off work on February 13, to
exchange property that each had in their possession.
Sometime thereafter, Doe learned that Roe had withdrawn
the entire balance of approximately $8,000 from their joint
bank account.

At about 9:45 a.m. on February 13, Roe showed up
unannounced to Doe’s teaching assistant office on campus,
before he was scheduled to teach, to confront him. Roe was
not an active student enrolled at UCLA at the time. Roe
pounded on the door repeatedly, without announcing herself,
until Doe answered. Doe, who was meeting with another
graduate student at the time, refused to let Roe into his office.
Roe demanded that Doe return her Social Security card
which she claimed Doe had in his possession. When Doe
asked for his engagement ring back, Roe said she had thrown
it into the ocean.
6 DOE V. REGENTS OF THE UNIV. OF CAL.

Doe explained that he needed to leave to teach his class
and asked Roe to wait until he was finished, but Roe refused
to let him leave his office. Roe attempted to block Doe’s
doorway with her arms stretched out and threatened to call
the police to have Doe arrested. Eventually, Doe was able
to get around Roe to get to his class. Roe followed him and
unsuccessfully tried to prevent him from entering his
classroom.

While Doe taught his class, Roe called the University
police to report that Doe had pushed her in the upper torso
area and grabbed her wrist and forearm. Based on this
report, University police arrested Doe for misdemeanor
domestic battery after he completed teaching his class.

Two months after the incident, on April 13, Roe lodged
a Title IX complaint with the University against Doe,
alleging thirteen instances of misconduct, some dating back
to the Fall of 2014. Although she was no longer a student at
UCLA at the time of the February incident (or at the time she
filed her Title IX complaint), she represented to the
University that she was. UCLA did not verify Roe’s status
as a student. Roe also reported as part of her Title IX
complaint that she had suffered a rib fracture from her
encounter with Doe on February 13. The University
ultimately found this to be untrue.

On May 10, 2017, the University’s Title IX Office and
the Office of Student Conduct issued a joint Notice of
Charges to Doe, charging him with violations of policies
relating to dating violence, conduct that threatens health or
safety, stalking, sexual harassment, terrorizing conduct, and
sexual assault. Pending resolution of the investigation of
these charges, and without a hearing, the Office of the Dean
of Students immediately suspended Doe on an interim basis,
 DOE V. REGENTS OF THE UNIV. OF CAL. 7

banned him from UCLA property, and evicted him from
student housing. 3

UCLA Title IX Investigator Sonia Shakoori took over
responsibility for the investigation. Doe and his advisors 4
met with Ms. Shakoori on July 25, 2017, to answer her
questions and provide a written statement of events. On
September 11, 2017, Doe was provided with limited, online
access to a summary of information collected during
Ms. Shakoori’s investigation and a brief opportunity to
comment or provide new information.

On September 15, 2017, the University issued a joint
amended Notice of Charges to Doe, adding four additional
alleged incidents of misconduct. Regarding the February 13,
2017, incident, the amended Notice of Charges stated that
Doe “engaged in one incident of Dating Violence . . . in that
he assaulted [Roe] outside of his office.” On September 22,
2017, after Doe had a brief opportunity to review and
respond to the new notice, Ms. Shakoori issued her final
Investigation Report in redacted form. The report concluded
that Doe was only responsible for the February 13, 2017,
incident but found that this incident violated four separate
UC policy provisions contained in both the University of
California Policy for Sexual Violence and Sexual
Harassment (“SVSH Policy”) and the UCLA Student
Conduct Code (although these violations were not contained
in the joint amended Notice of Charges). Doe was found to

3
Doe appealed the interim suspension, and following a special
hearing held on May 22, 2017, the University modified the interim
suspension to allow Doe to participate in certain activities on campus.
4
Although his advisors were allowed to attend, Doe alleges that per
University policy, as an accused, his advisors were not allowed to speak,
advocate, or participate in the Title IX investigation or adjudication.
8 DOE V. REGENTS OF THE UNIV. OF CAL.

be not responsible for the other twelve allegations brought
against him. The report also found that Roe suffered no
bodily injury on February 13, 2017, instead finding that Doe
had placed Roe “in reasonable fear of serious bodily
injury.” 5 Associate Dean of Students Jasmine Rush adopted
this finding as well.

Over Doe’s written objections, on October 13, 2017,
Dean Rush accepted the report’s findings of responsibility
for the February 13, 2017, incident but found that Doe had
only violated the UC SVSH Policy for Dating Violence
(section II.B.1.c.i.) and UCLA Student Conduct Code
section 102.08 as a result. As a sanction for these violations,
Dean Rush suspended Doe from UCLA for two years.

On October 27, 2017, Doe timely appealed Dean Rush’s
decision to the University’s internal appeal body pursuant to
the UC SVSH Policy. Following an appeal hearing on
December 8, 2017, the internal appeal body affirmed Dean
Rush’s decision and the two-year suspension sanction
became effective on December 13, 2017.

On February 13, 2018, Doe filed a petition for writ of
mandamus against the Regents in Los Angeles Superior
Court, in which he challenged the disciplinary proceedings
and decision rendered by the University. On April 3, 2018,
Judge Chalfant granted Doe’s motion to stay the decision
and sanction, finding in relevant part that the evidence did
not support the University’s findings. Not long thereafter,
on May 22, 2018, the Regents filed a Confession of
5
Doe alleges that the UC SVSH Policy defines “Dating Violence”
as “conduct by a person who is or has been in a romantic or intimate
relationship with the Complainant that intentionally, or recklessly,
causes bodily injury to the Complainant or places the Complainant in
reasonable fear of serious bodily injury.”
 DOE V. REGENTS OF THE UNIV. OF CAL. 9

Judgment stating that the Regents believed that Doe’s
petition should be granted. The court therefore entered
judgment in Doe’s favor, the Regents’ decision and sanction
were vacated and set aside, and the matter was remanded for
the Regents to reconsider its action. But this relief came too
late, and Doe lost his student visa status.

B. Procedural Background.

On December 6, 2019, Doe filed a complaint with the
district court stating eight causes of action for violations of
Title IX, the Fourteenth Amendment, and state law. On the
Regents’ motion, the district court dismissed the Fourteenth
Amendment and state law claims finding they were barred
by the Eleventh Amendment. The district court also
dismissed Doe’s Title IX claims because he failed to allege
that gender played a role in either the decision to initiate
proceedings or their outcome, but it granted Doe leave to
amend those claims.

On May 8, 2020, Doe filed his FAC stating two Title IX
causes of action—one on an erroneous outcome theory and
one on a selective enforcement theory. In granting the
Regents’ motion to dismiss the FAC for failing to state a
claim, the district court, citing Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), held that Doe’s general allegations were
insufficient.

Addressing Doe’s erroneous outcome theory cause of
action, the district court relied heavily on our decision in
Austin v. University of Oregon, 925 F.3d 1133, 1138 (9th
Cir. 2019), and reasoned that Doe, like the plaintiffs in
Austin, “does not make any plausible link connecting … the
University’s disciplinary actions to the fact that [he is] male”
because “[j]ust saying so is not enough.” The district court
10 DOE V. REGENTS OF THE UNIV. OF CAL.

here did note that Doe had included some gender-based
allegations that were particular to his proceedings in his FAC
but held that these allegations “do not convince the Court
that sex discrimination was the source of any error.”

Addressing Doe’s selective enforcement theory cause of
action, the district court concluded that the “allegations are
insufficient to allege that [Doe] ‘was treated differently than
similarly situated members of the opposite sex, or that the
disciplinary policies were biased against [Doe] based on his
gender.’”

Finally, the district court declined to grant leave to
amend because it deemed amendment futile. Doe timely
appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291. We
review a grant of a motion to dismiss de novo. Karasek,
956 F.3d at 1104. In doing so, we accept as true all well-
pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff. Id.; see also In re Tracht
Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016).

III.

Title IX of the Education Amendments of 1972 provides
that “[n]o person in the United States shall, on the basis of
sex 6, be excluded from participation in, be denied the

6
Although we recognize the definitional differences between the
two terms, throughout this opinion we use the term “sex”
interchangeably with “gender” to mean “sex” under Title IX. See, e.g.,
Emeldi v. Univ. of Or., 698 F.3d 715, 723 (9th Cir. 2012) (“Title IX of
 DOE V. REGENTS OF THE UNIV. OF CAL. 11

benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance….” 20 U.S.C. § 1681(a). Doe alleges that the
Regents violated Title IX in its handling of the disciplinary
proceedings instituted against him following the complaint
lodged by Roe. The only issue on appeal is whether Doe
sufficiently pled that he was discriminated against “on the
basis of his sex” during the course of the disciplinary
proceeding. 7 We turn first to the applicable pleading
standard and then to the sufficiency of Doe’s allegations.

A. Pleading Standard for Title IX Claims.

In Schwake v. Arizona Board of Regents, we recently
clarified the applicable pleading standard for Title IX claims
asserted in the disciplinary proceeding context. 8 Consistent
with the standard enunciated by the Seventh Circuit in Doe
v. Purdue University, 928 F.3d 652, 667–68 (7th Cir. 2019),

the Education Amendments of 1972 bars gender-based discrimination by
federally funded educational institutions.”).
7
Doe sufficiently alleges that the University receives federal
funding and that he was “excluded from participation in [or] denied the
benefits of … [an] education program” when the University suspended
him. 20 U.S.C. § 1681(a).
8
The opinion in Schwake was published two weeks after the district
court’s order below. The district court’s decision, therefore, was largely
based on the Ninth Circuit precedent in place at the time, Austin v.
University of Oregon. However, because the central inquiry under both
cases is the same, we find that Doe’s FAC satisfies the pleading
standards as stated in both Austin and Schwake. For that reason, while
we may grant leave to amend in situations where the controlling
precedents change midway through the litigation, amendment is not
necessary here where the FAC as currently plead satisfies both pleading
standards. See Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma County.,
708 F.3d 1109, 1117–18 (9th Cir. 2013).
12 DOE V. REGENTS OF THE UNIV. OF CAL.

we held that a party stating a Title IX claim need not meet
the doctrinal tests (i.e. the erroneous outcome theory or the
selective enforcement theory) superimposed on the statute
by some circuits because “‘at bottom, they all ask the same
question.’” Schwake, 967 F.3d at 947 (quoting Doe v.
Columbia Coll. Chi., 933 F.3d 849, 854–55 (7th Cir. 2019)).
That question is “whether ‘the alleged facts, if true, raise a
plausible inference that the university discriminated [against
the plaintiff] ‘on the basis of sex’[].” Id. at 947 (quoting
Columbia Coll. Chi., 933 F.3d at 854–55). “There is no
heightened pleading standard for Title IX claims.” Id.
at 949; see Austin, 925 F.3d at 1137 n.4.

Schwake also clarified two important points for
considering whether a Title IX complaint can survive a
motion to dismiss. First, a plaintiff “need only provide
‘enough facts to state a claim for relief that is plausible on
its face,’” Schwake, 967 F.3d at 947 (quoting Twombly,
550 U.S. at 570), and second, “[s]ex discrimination need not
be the only plausible explanation or even the most plausible
explanation for a Title IX claim to proceed,” id. at 948.

Because we previously had “not provided guidance on
what allegations suffice to state a Title IX claim,” Schwake
endeavored to provide that guidance. 967 F.3d at 943.
Appreciation of this guidance requires that we first briefly
recount the facts of Schwake before turning to the
sufficiency of Doe’s allegations.

In Schwake, the plaintiff alleged that the Department of
Education (“DOE”) initiated an investigation of the
university for Title IX violations in its handling of sexual
misconduct complaints, which he argued impacted the way
the university handled those cases. Schwake, 967 F.3d
at 948. He also alleged gender-based decisionmaking, in
that male respondents at his university were invariably found
 DOE V. REGENTS OF THE UNIV. OF CAL. 13

guilty in disciplinary proceedings such as his, and that he
was aware of recent cases against male respondents in which
all were found guilty “regardless of the evidence or lack
thereof.” Id. at 949.

In his specific case, Schwake also alleged facts regarding
procedural irregularities which the court found relevant.
First, Schwake alleged that a university employee made
public comments about the disciplinary proceeding before
Schwake’s appeal was complete, including that the
university had “convicted [Schwake] of sexual assault.” Id.
at 949–50. Schwake alleged that the person also shared
confidential and privileged information regarding his case.
Id. Second, Schwake alleged that Dr. Hicks, an individual
involved in the proceeding, refused to allow him to appeal
the punishment and underlying finding of responsibility after
Schwake had negotiated an alternative sanction that did not
involve suspension. Id. at 950. He further alleged that
Dr. Hicks refused to permit Schwake to file a harassment
complaint against the complainant, asserting that such a
complaint might result in additional sanctions including
degree revocation. Id. Finally, Schwake made several
allegations that the university’s investigation was one-sided,
including allegations that (1) the university failed to consider
his version of the alleged assault or to follow up with
witnesses and evidence he offered in his defense; (2) the
university suspended him based on additional violations of
the Student Code without providing an opportunity to
respond; and (3) the university found him responsible
without allowing him full access to evidence. Id. at 951.

The court concluded that the allegations of background
indicia of sex discrimination, when combined with the
allegations concerning the specific disciplinary case against
Schwake, raised a plausible inference of gender bias
14 DOE V. REGENTS OF THE UNIV. OF CAL.

sufficient to survive dismissal on a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Id.

With the applicable pleading standard and guidance from
Schwake in mind, we turn to Doe’s Title IX claims.

B. The Sufficiency of Doe’s Title IX Claims.

Doe’s FAC divides his relevant allegations into three
categories: (1) allegations of external pressures,
(2) allegations of an internal pattern and practice of bias, and
(3) allegations of specific instances of bias in his case. We
consider each of these categories of allegations in turn. We
conclude that these allegations, when combined, raise a
plausible inference of discrimination on the basis of sex
sufficient to withstand dismissal at this stage. 9

1. Allegations of External Pressures.

The FAC alleges several facts which Doe argues point to
external pressures impacting how the University handled
sexual misconduct complaints around the time of Roe’s
complaint against him. Specifically he points to: (1) the
April 2011, “Dear Colleague” letter (the “DCL”) from DOE
directing schools to take “immediate action” to eliminate
sexual harassment (which the court in Schwake, 967 F.3d at
948, noted “may be relevant” in evaluating the plausibility
of a Title IX claim, even though it wasn’t alleged there);
(2) an investigative report by National Public Radio
regarding struggles facing sexual assault victims which

9
Contrary to the Regents’ assertion that Doe’s “inadequate briefing”
should result in a waiver of any argument that the facts alleged in the
FAC are linked to sex discrimination, we find that Doe’s briefing
specifically and distinctly argues the issue in his opening brief. See
United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
 DOE V. REGENTS OF THE UNIV. OF CAL. 15

prompted the DCL; (3) the Joint Legislature Audit
Committee’s audit of UCLA following student testimony to
the Legislature in August 2013 about a lack of response to
sexual harassment claims; (4) an April 29, 2014, guidance
document from DOE regarding sexual misconduct policies
in which it noted that the due process rights of the respondent
should not “unnecessarily delay the protections provided by
Title IX to the complainant;” and (5) an April 2014 White
House report and the June 2014 Senate testimony by then-
Assistant Secretary of Education Catherine Lhamon, both
warning that schools violating Title IX could lose federal
funding.

The Regents correctly notes that these allegations of
external pressures are largely of general applicability to any
federally-funded university, with only one relevant
allegation pertaining to UCLA specifically—the 2013
UCLA audit. But this fact does not undermine the
allegations’ relevancy in evaluating the plausibility of a Title
IX claim. 10 Rather, these allegations “provide[] a backdrop
that, when combined with other circumstantial evidence of
bias in [a] specific proceeding, give[] rise to a plausible
claim.” Purdue Univ., 928 F.3d at 669 (quoting Doe v.
Baum, 903 F.3d 575, 586 (6th Cir. 2018)).

For example, it is reasonable to infer that the DCL, the
threat of losing federal funding if sexual misconduct was not
vigorously investigated, and the Joint Legislature Audit
Committee’s audit regarding the University’s “lack of
10
The Regents also notes that the DCL was withdrawn in September
2017 before Doe’s administrative appeal. This fact also doesn’t lessen
the relevancy of the letter in evaluating the plausibility of a Title IX claim
in this context. Schwake, 967 F.3d at 948. Specifically, Doe suggests
that the DCL may have impacted how UCLA handled the Title IX
complaint from its inception in May 2017.
16 DOE V. REGENTS OF THE UNIV. OF CAL.

response to sexual harassment claims” would place “tangible
pressure” on the University. When taken alongside Doe’s
other allegations discussed below, it is plausible that such
pressure would affect how the University treated
respondents in disciplinary proceedings on the basis of sex,
even in 2017. Schwake, 967 F.3d at 948; Baum, 903 F.3d at
586; Doe v. Columbia Univ., 831 F.3d 46, 57–58 (2d Cir.
2016).

Accordingly, we find that these allegations of external
pressures, although alone possibly insufficient to survive a
motion to dismiss, give rise to a plausible Title IX claim
when evaluated in conjunction with the allegations of an
internal pattern and practice of bias and of specific instances
of bias in Doe’s disciplinary proceedings.

2. Allegations of an Internal Pattern and Practice of
Bias.

The FAC also alleges several facts which Doe contends
show an internal pattern and practice of bias in the
University of California system, and at UCLA in particular.
These include: (1) allegations of state court litigation in
which California courts have found that the University of
California deprived male students of fair proceedings in
adjudicating misconduct allegations; (2) allegations of
articles and blogs either authored by University leaders,
printed in University newspapers, or hosted on University
websites suggesting concern for victims or appearing to be
“pro-complainant;” (3) allegations of a 2016 report by a
UCLA Title IX coordinator citing an event about countering
toxic masculinity as a “campus achievement;”
(4) allegations that UCLA is being investigated for
providing scholarships and programs that favor women over
men; and (5) an allegation that the investigator on Doe’s
case, Ms. Shakoori, tweeted in October 2016 the following:
 DOE V. REGENTS OF THE UNIV. OF CAL. 17

“Instead of women having to constantly prove that we are
not ‘crazy’ but rational and disciplined emotionally we need
to teach young boys and men how to express their feelings
and how to handle others’ emotions. . . .”

The Regents dismiss the relevancy of these allegations
as being insufficient to show gender bias. The Regents’
point is well-taken. Most of these allegations are gender
neutral on their face, and for those that do reference gender,
Doe’s FAC fails to connect how these allegations could give
rise to a plausible inference of bias in his disciplinary
proceeding. For example, making arguably feminist
statements, like the ones in Ms. Shakoori’s 2016 tweet, is not
alone sufficient to support a reasonable inference that an
individual is biased against men. See Doe v. Miami Univ.,
882 F.3d 579, 593 n.6 (6th Cir. 2018).

However, the FAC alleges several other facts which
demonstrate an internal pattern of gender-based
decisionmaking against male respondents. First, Doe alleges
that the respondents in Title IX complaints that UCLA
decided to pursue from July 2016 to June 2018 were
overwhelmingly male (citing specific statistics for each of
those years), and that the Regents doesn’t report by gender
the percentage of respondents found to have violated campus
policy. Doe also alleges that the University “has never
suspended a female for two years based upon these same
circumstances, nor [has it] used the reasoning that two years
is a minimum suspension when issuing a suspension to a
female … under these types of facts….” As we noted in
Schwake, these are precisely the type of non-conclusory,
relevant factual allegations that the district court may not
freely ignore. Schwake, 967 F.3d at 949.
18 DOE V. REGENTS OF THE UNIV. OF CAL.

The Regents contends that these allegations are
insufficient to show that it treated men and women
differently in such contexts, arguing that unlike Schwake,
Doe has no personal awareness of such facts 11 and that the
gender breakdown of complainants and respondents could
be attributed to numerous possible factors that are not gender
bias. But a lack of further detail does not render these
allegations insufficient at the pleading stage, particularly
because “[i]t may be difficult for a plaintiff to know the full
extent of alleged discrimination in decisionmaking before
discovery allows a plaintiff to unearth information
controlled by the defendant.” Schwake, 967 F.3d at 949.
This is particularly true where, as here, any purported non-
biased explanation for the enforcement statistics alleged by
Doe would necessarily be maintained by the Regents.

Moreover, after Schwake, a plaintiff need not satisfy the
selective enforcement theory discussed in Austin to state a
Title IX claim. Schwake, 967 F.3d at 951. It follows that
the asymmetrical enforcement allegations we’ve identified
can, and here do, lead to a plausible inference of
discrimination on the basis of sex, at least when considered
in conjunction with the other well-pleaded facts regarding
external pressures and specific instances of bias in Doe’s
case.

11
The Regents contends that many allegations regarding biased
enforcement are stated “on information and belief” and therefore need
not be accepted as true. Notably, the three allegations which we have
identified here were not alleged “on information and belief,” and we
therefore accept those allegations as true. See Karasek, 956 F.3d at 1104.
 DOE V. REGENTS OF THE UNIV. OF CAL. 19

3. Allegations of Specific Instances of Bias in Doe’s
Case.

The above allegations taken together sufficiently allege
background indicia of sex discrimination. However, to
survive a motion to dismiss, Doe “must combine [those
allegations] with facts particular to his case.” Schwake,
967 F.3d at 949 (alteration in original) (quoting Columbia
Coll. Chi., 933 F.3d at 855). We hold that Doe has
sufficiently done so.

First, the FAC alleges that Jason Zeck, UCLA’s
Respondent Coordinator, advised Doe in July 2017, during
the pending Title IX investigation, that “no female has ever
fabricated allegations against an ex-boyfriend in a Title IX
setting.” The Regents’ position that Mr. Zeck’s alleged
statement cannot possibly be true because Doe was only
found responsible for one of the thirteen alleged incidents of
misconduct brought against him by Roe is simply
untenable. 12

Instead, as we must accept this well-pleaded allegation
as true, Mr. Zeck’s statement suggests that UCLA’s Title IX
officials held biased assumptions against male respondents
during the course of Doe’s disciplinary proceeding.
Particularly given the ultimate findings of Roe’s numerous
fabrications, Mr. Zeck’s statement plausibly supports an
inference that the Regents prejudged Roe’s allegations (and
Doe’s defenses thereto) during its investigation on the basis
of their respective genders.

12
An alternative explanation might be that, when confronted by a
claim that lacked merit, the University rushed to judgment in issuing the
two-year interim suspension and then sought out a way to find the
accused responsible for something in order to justify its earlier actions.
20 DOE V. REGENTS OF THE UNIV. OF CAL.

Contrary to the Regents’ argument, “statements by
‘pertinent university officials,’ not just decisionmakers, can
support an inference of gender bias.” Schwake, 967 F.3d
at 950 (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d
Cir. 1994)). Mr. Zeck’s comments are relevant because he
served as the “Respondent Coordinator” throughout the Title
IX investigation. So while not a decisionmaker, Mr. Zeck
was familiar with UCLA’s Title IX process and the facts
underlying Doe’s case. It is therefore reasonable to infer that
Mr. Zeck’s statement reflects the broader gender
assumptions within UCLA’s Title IX office during its
investigation of Doe.

Second, the FAC alleges that Associate Dean Rush, the
ultimate decisionmaker here, advised Doe that if she were in
his shoes, she would have invited Roe into her office during
the February 2017 incident. Associate Dean Rush’s
comment suggests that she did not view Roe as an aggressor,
and at the very least raises the question of whether, if the
gender roles were reversed, Associate Dean Rush would
have made the same recommendation to a female
approached by her angry, male ex-fiancé when he showed
up unannounced to confront her at her place of employment.

The FAC further alleges several additional facts which,
if assumed to be true, demonstrate irregularities in Doe’s
proceedings that, while not dispositive on their own, support
an inference of gender bias. Schwake, 967 F.3d at 951
(holding that procedural irregularities are relevant to
determining gender bias).

For example, the FAC alleges that the University
demonstrated its disparate treatment of Doe as a male during
its investigation by failing to investigate his claim that Roe
 DOE V. REGENTS OF THE UNIV. OF CAL. 21

was not a student at the time of the incident 13 and not
discrediting Roe when it became apparent that Roe had
misrepresented her status as a student and falsely stated that
she fractured a rib on February 13. The FAC also alleges
other irregularities in the investigation including the fact that
Ms. Shakoori made findings of violations of policy not
included in the Joint Notice or Amended Joint Notice of
Charges.

The FAC enumerates several other allegations of
irregular proceedings during the appeal hearing itself,
including that (1) the burden was placed on Doe, not the
University; (2) Doe was not permitted to speak at the appeal
hearing 14; (3) fact witness testimony supporting Doe’s
account of the events was discounted, while witness
testimony supporting Roe’s account was accepted without
the need for an independent interview by the appeal panel;
(4) Associate Dean Rush evidenced gender bias when she
falsely stated that the two-year suspension was required by
SVSH Policy for any type of dating violence; and (5) the
appeal panel only found that Roe was in fear of “bodily
injury,” not “serious bodily injury” as required by the policy.
Additionally, the FAC referenced the state court’s ruling on

13
Roe’s status as a non-student at the time of the incident would not
preclude the University from proceeding with investigating her
complaint under Title IX because her complaint also included allegations
of misconduct dating back to 2014, when she was a student at UCLA.
14
It is not clear from the FAC whether these first two allegations
suggest that the Regents failed to comply with their own policies, or
whether Doe merely suggests that these procedures are inherently
problematic, regardless of the University’s adopted policies.
Nevertheless, even if the University’s policies in place at the time
condoned these procedures, Doe is entitled to allege that such policies
were inherently problematic, as he has done here.
22 DOE V. REGENTS OF THE UNIV. OF CAL.

the motion for stay in the writ proceeding, wherein the court
found that the evidence did not support the Regents’
findings.

Although the Regents contends that these allegations of
procedural irregularities do not suggest that gender was the
reason for the supposed errors, this Circuit, as well as the
Seventh and Sixth Circuits, have found similar irregularities
support an inference of gender bias, particularly when
considered in combination with allegations of other specific
instances of bias and background indicia of sex
discrimination. See, e.g., Schwake, 967 F.3d at 951 (finding
sex discrimination claim plausible based in part on
allegations that the university failed to consider the male
accused’s version of the alleged assault or to follow up with
witnesses and evidence offered in his defense); Purdue
Univ., 928 F.3d at 669 (finding sex discrimination claim
plausible based in part on allegations that the university’s
Title IX investigator credited the story of the female accuser
over the accused male student although the investigator had
never spoken with the accuser); Baum, 903 F.3d at 586
(finding sex discrimination claim plausible based in part on
allegations that the appeals board exclusively credited
female testimony and rejected all male testimony).

The fact that the Regents ultimately found Doe not
responsible for twelve of the thirteen allegations made
against him does not make the allegations of irregularities in
the proceedings any less relevant to our inquiry. See, e.g.,
Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019);
Columbia Univ., 831 F.3d at 56–57; Doe v. Oberlin Coll.,
963 F.3d 580, 587 (6th Cir. 2020) (“Procedural irregularities
provide strong support for Doe’s claim of bias here.”), Doe
v. Univ. of Ark. - Fayetteville, 974 F.3d 858, 865 (8th Cir.
2020) (finding that a complaint which alleged both “a
 DOE V. REGENTS OF THE UNIV. OF CAL. 23

dubious decision in [the plaintiff’s] particular case taken
against the backdrop of substantial pressure on the
University to demonstrate that it was responsive to female
complainants” was sufficient to survive a motion to dismiss);
Doe v. Univ. of Denver, 1 F.4th 822, 831–32 (10th Cir. 2021)
(rejecting a university’s argument that its employees “were
biased against sexual-misconduct respondents, regardless of
their sex” where the plaintiff alleged that the university’s
“investigation was replete with procedural deficiencies, all
of which favored Jane [Roe] and disfavored him, despite
substantial reasons to discount her allegations”). Rather, at
some point an accumulation of procedural irregularities all
disfavoring a male respondent begins to look like a biased
proceeding despite the Regents’ protests otherwise.

Taken together, Doe’s allegations of external pressures
and an internal pattern and practice of bias, along with
allegations concerning his particular disciplinary case, give
rise to a plausible inference that the University discriminated
against Doe on the basis of sex. The fact that sex
discrimination is “a plausible explanation” for the
University’s handling of the disciplinary case against Doe is
sufficient for his Title IX claim to survive a motion to
dismiss. Schwake, 967 F.3d at 948. While Doe “may face
problems of proof, and the factfinder might not buy the
inferences that he’s selling,” his Title IX claim makes it past
the pleading stage. Purdue Univ., 928 F.3d at 670.

IV.

At this stage of the proceeding, we conclude that Doe has
sufficiently stated a Title IX claim against the Regents.
Accordingly, we reverse and vacate the district court’s order
24 DOE V. REGENTS OF THE UNIV. OF CAL.

and judgment dismissing the claims with prejudice, and
remand for further proceedings consistent with this opinion.

REVERSED, VACATED, and REMANDED. 15

15
The Regents’ request for judicial notice (Dkt. 22) is DENIED,
without prejudice to the Regents seeking admission of these documents
in further proceedings below. We cannot take judicial notice of disputed
facts contained in public records, which is what it appears the Regents
asks us to do here. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d
988, 999 (9th Cir. 2018).