UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1702

JOHN DOE 2, by and through his Father and Next Friend, John Doe 1,

Plaintiff - Appellant,

v.

THE FAIRFAX COUNTY SCHOOL BOARD; FAIRFAX COUNTY PUBLIC SCHOOLS; JOHN BANBURY, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally; EILEEN HOPPOCK, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally; NANCY KRELOFF, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally,

Defendants - Appellees.

No. 19-1717

JOHN DOE 2, by and through his Father and Next Friend, John Doe 1,

Plaintiff - Appellee,

v.

THE FAIRFAX COUNTY SCHOOL BOARD,

Defendant - Appellant,

and FAIRFAX COUNTY PUBLIC SCHOOLS; JOHN BANBURY, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally; EILEEN HOPPOCK, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally; NANCY KRELOFF, employees of Fairfax County Public Schools sued in his or her official and individual capacity, jointly and severally,

Defendants.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:18-cv-00846-LMB-TCB)

Submitted: September 11, 2020 Decided: October 21, 2020

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Subodh Chandra, Donald P. Screen, Ashlie C. Sletvold, CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellant/Cross-Appellee. Michael E. Kinney, TURNER & KINNEY, Leesburg, Virginia, for Appellees/Cross-Appellants.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

After three female students accused John Doe 2 (“Doe”)—then a high school

sophomore—of inappropriate sexual comments and touching, administrators at Lake

Braddock Secondary School (“Lake Braddock”) suspended Doe for ten days before

eventually transferring him to a different school. Thereafter, Doe, by and through his

father, filed the instant action against the Fairfax County School Board (“the Board”),

alleging sex discrimination, in violation of Title IX of the Education Amendments of 1972

(Title IX),

to 1688; free speech violations under the First Amendment

and the Virginia Constitution; and due process violations under the Fourteenth

Amendment. The district court granted summary judgment to the Board, and, for the

reasons that follow, we affirm.

“We review de novo a district court’s grant or denial of a motion for summary

judgment, construing all facts and reasonable inferences therefrom in favor of the

nonmoving party.” Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co.,

(4th Cir.

2018). Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

Title IX provides that no person “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.”

(a).

A Title IX plaintiff may pursue a private cause of action against—and obtain damages

3 from—a “funding recipient [that] engages in intentional conduct that violates the clear

terms of the statute.” Davis v. Monroe Cnty. Bd. of Educ.,

(1999).

Citing Yusuf v. Vassar Coll.,

(2d Cir. 1994), the parties agree that

Doe can attempt to recover on his sex discrimination claim under either an erroneous

outcome theory or a selective enforcement theory. To prevail on an erroneous outcome

claim, a plaintiff must (1) assert that he “was innocent and wrongly found to have

committed an offense,” (2) establish “facts sufficient to cast some articulable doubt on the

accuracy of the outcome of the disciplinary proceeding,” and (3) demonstrate “particular

circumstances suggesting that gender bias was a motivating factor behind the erroneous

finding.”

By contrast, a selective enforcement “claim asserts that, regardless of the

student’s guilt or innocence, the severity of the penalty and/or the decision to initiate the

proceeding was affected by the student’s gender.”

Doe was accused of violating the school’s sexual harassment policy, which prohibits

inappropriate verbal or physical conduct of a sexual nature that creates an intimidating,

hostile, or offensive environment. And of the several misconduct allegations lodged

against him, Doe admitted: touching a female student between her belly button and pelvic

area, though he claimed it was an accident resulting from consensual horseplay; musing

that a student with fake fingernails would injure herself while masturbating; and jokingly

asking how a girl does not orgasm when inserting a tampon. Although Doe appears to

dispute that his conduct was sanctionable, we agree with the Board that Doe’s admissions

belie any assertion of innocence and, thus, defeat his erroneous outcome claim.

4 However, even if Doe had maintained his innocence, we discern no evidence from

which a reasonable jury could find that anti-male bias animated the proceedings, as

necessary to prevail under either theory. In arguing otherwise, Doe points to a high-profile

scandal involving sexual harassment allegations against the male coach of Lake

Braddock’s girls’ basketball team. Doe posits that the hypersensitive atmosphere created

by the basketball scandal resulted both in an uncritical investigation into his own alleged

misconduct and, ultimately, a decision that reflected an eagerness to blindly credit female

accusers over male suspects. This theory, however, is rife with speculation. Indeed,

drawing from the evidence on which Doe relies, there are several other plausible

explanations for an erroneous but lawful outcome, such as an elevated sensitivity to sexual

harassment in the context of high school athletics, an overcorrection for the perceived

mishandling of the basketball scandal, or simply a desire to believe all accusers, male or

female. None of these explanations necessarily involves any sort of improper gender

discrimination; thus, without more, any inference that the basketball scandal created an

inhospitable climate for males accused of sexual misconduct would “necessarily be based

on speculation and conjecture.” Matherly v. Andrews,

(4th Cir. 2017)

(internal quotation marks omitted). For this reason, we conclude that the district court

properly granted summary judgment to the Board on Doe’s sex discrimination claims.

To establish a procedural due process violation, a plaintiff must show “deprivation

by state action of a constitutionally protected interest in life, liberty, or property . . . without

due process of law.” Kerr v. Marshall Univ. Bd. of Governors,

(4th Cir.

2016) (emphasis and internal quotation marks omitted). In the educational context,

5 “students facing suspension and the consequent interference with a protected property

interest must be given some kind of notice and afforded some kind of hearing.” Goss v.

Lopez,

(1975). For “a suspension of 10 days or less, . . . the student

[must] be given oral or written notice of the charges against him and, if he denies them, an

explanation of the evidence the authorities have and an opportunity to present his side of

the story.”

. A formal proceeding is not necessary; rather, due process requires

only “an informal give-and-take between the student and the administrative body

dismissing him that would, at least, give the student the opportunity to characterize his

conduct and put it in what he deems the proper context.” Bd. of Curators of Univ. of

Missouri v. Horowitz,

(1978) (internal quotation marks omitted).

Consistent with his position at summary judgment, Doe claims that, prior to the

hearing, he was not notified who his accusers were or what he was accused of doing. But

Doe presented a different version of events in his complaint, alleging that an assistant

principal removed him from class and confronted him with the misconduct allegations

made by three of his classmates. Citing this concession, the district court concluded that

Doe had received adequate notice of the charges against him.

“It is well-established that even if the post-pleading evidence conflicts with the

evidence in the pleadings, admissions in the pleadings are binding on the parties and may

support summary judgment against the party making such admissions.” Bright v. QSP,

Inc.,

(4th Cir. 1994) (internal quotation marks omitted); see Minter v.

Wells Fargo Bank, N.A.,

(4th Cir. 2014) (discussing judicial

admissions). Given that the allegations in Doe’s complaint conceded the point he now tries

6 to dispute—that is, that an administrator provided Doe with detailed notice of the sexual

harassment allegations—and because he makes no attempt to reconcile the inconsistency

between his complaint and his postpleading arguments, we discern no error in the district

court’s reliance on the admissions in Doe’s complaint. Furthermore, because the complaint

indicated that Doe received a comprehensive summary of the accusations against him, we

agree that there is no evidence of a prehearing due process violation.

As to the subsequent disciplinary proceedings, “[d]ue process . . . mandates only

that [the accused student] be afforded a meaningful hearing.” Tigrett v. Rector & Visitors

of Univ. of Va.,

, 630 (4th Cir. 2002). Doe primarily contends that he should

have been afforded an opportunity to cross-examine his accusers. However, even in the

circuits where a right to a cross-examination is available in a school setting, a cross-

examination is not required where the accused admits to enough of the underlying

accusations to sustain the result. See Doe v. Baum,

, 581–84 (6th Cir. 2018).

Here, Doe admitted to the vulgar jokes and to touching one of the students in violation of

the school’s handbook. Thus, we reject Doe’s contention that his inability to cross-examine

his student accusers constituted a due process violation.

Doe also seeks to raise a due process challenge based on several perceived flaws in

the school’s investigation. Doe’s argument, however, seems more addressed to the strength

of the charges lodged against him rather than the adequacy of the hearing that followed.

Thus, even if Doe is correct that the investigation was lacking, he fails to explain how this

shortcoming undermined the efficacy of a hearing where Doe, with the aid of counsel and

his parents, was able to directly challenge what he viewed as largely baseless allegations.

7 Doe’s remaining procedural due process claims—that he was repeatedly interrupted at the

hearing, that one of the school administrators fabricated evidence, and that the hearing

officers abruptly ended the hearing—do not find support in the record. Finally, given that

Doe was found culpable of inappropriately touching multiple classmates, we cannot accept

his claim that the severity of his punishment represented a violation of substantive due

process. See Kerr,

(providing standard for substantive due process claims).

Turning to Doe’s free speech claims, “[a]lthough students do not shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate, the

constitutional rights of students in public school are not automatically coextensive with the

rights of adults in other settings.” Hardwick ex rel. Hardwick v. Heyward,

(4th Cir. 2013) (citations and internal quotation marks omitted). Thus, where student

speech is likely to “‘substantially interfere with the work of the school or impinge upon the

rights of other students,’” school officials are permitted to prohibit or punish such speech.

at 434-35 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

(1969)). In addition, even without evidence of substantial inference, school officials can

restrict speech containing “‘vulgar and offensive terms’ as part of their role in teaching

students the ‘fundamental values of habits and manners of civility essential to a democratic

society.’” Id. at 435 (some internal quotation marks omitted) (quoting Bethel Sch. Dist.

No. 403 v. Fraser,

(1986)).

Doe asserts that the tampon joke was a private remark that did not disrupt or

interfere with school activities. But because the joke was undoubtedly vulgar—a point

8 Doe does not dispute—we conclude that the district court properly determined that it was

not protected speech in a school setting.

Finally, Doe contends that the student conduct manual is facially overbroad, a claim

that requires a plaintiff to “demonstrate that a regulation’s overbreadth is not only real, but

substantial as well, judged in relation to the challenged regulation’s plainly legitimate

sweep, and also that no limiting construction or partial invalidation could remove the

seeming threat or deterrence to constitutionally protected expression.” Hardwick,

(ellipsis, brackets, and internal quotation marks omitted). While Doe maintains that

the manual’s speech restrictions are too broad because they extend beyond speech that

causes a substantial disruption, see Tinker,

, he overlooks that there are

several exceptions to the Tinker rule, see Hardwick,

(discussing exceptions

to Tinker’s substantial disruption requirement). Furthermore, contrary to Doe’s argument,

the manual plainly contains geographic and contextual limitations that delineate where a

student’s misconduct is subject to discipline. Thus, we readily reject Doe’s First

Amendment challenges. *

* Doe has also abandoned several other causes of action—specifically, his as- applied overbreadth challenge and his state law claims—by not addressing the bases for the district court’s unfavorable disposition of these claims. See Johnson v. United States,

(4th Cir. 2013) (explaining that appellant abandons challenge to district court’s ruling by not meaningfully contesting bases for court’s decision).

9 Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

10