Schiebel v. Schoharie Cent. Sch. Dist.

23-1080
Schiebel v. Schoharie Cent. Sch. Dist.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2023
No. 23-1080
KEITH S CHIEBEL,
Plaintiff-Appellant,
v.
S CHOHARIE C ENTRAL S CHOOL DISTRICT ,
KRISTIN DUG UAY , AND DAVID BLANCHARD,
Defendants-Appellees.*
On Appeal from the United States District Court
for the Northern District of New York
A RGUED: MARCH 6, 2024
DECIDED: NOVEMBER 1, 2024
Before: W ALKER , NARDINI, and MENASHI, Circuit Judges.
Plaintiff-Appellant Keith Schiebel appeals the judgment of the
district court dismissing his claim under Title IX. Schiebel alleges that
Defendant-Appellee Schoharie Central School District discriminated
* The Clerk of Court is directed to amend the caption as set forth above.

-- 1 of 38 --

2
against him on the basis of sex by conducting a Title IX investigation
that found that he sexually harassed a student when he reached
around her to retrieve supplies from a cabinet. We conclude that
Schiebel plausibly alleges that the school district violated Title IX. The
complaint states a Title IX claim under either of two theories. First,
the allegations indicate that the school district was deliberately
indifferent to the truth or falsity of the accusations against Schiebel
because its investigation was so deficient as to constitute a sham and
its decision was inexplicable. Second, the allegations indicate that the
school district affirmatively discriminated on the basis of sex because
the Title IX coordinator exhibited sex-based bias against Schiebel. We
reverse the judgment of the district court and remand for further
proceedings consistent with this opinion.
JARED K. C OOK (Karen R. Sanders, on the brief), Tully
Rinckey, PLLC, Rochester, NY, for Plaintiff-Appellant.
MATTHEW MEHNERT, Guercio & Guercio LLP,
Farmingdale, NY, for Defendants-Appellees.
MENASHI, Circuit Judge:
Plaintiff-Appellant Keith Schiebel appeals the judgment of the
district court dismissing his claim under Title IX against Defendant-
Appellee Schoharie Central School District (“SCSD”) and his claims
under state law against Defendants-Appellees SCSD, Kristin
DuGuay, and David Blanchard.
Schiebel is a veteran agriculture educator. In 2021, he brought
the “Mobile Maple Experience”—a trailer with educational
programming about the maple syrup industry—to the SCSD campus.

-- 2 of 38 --

3
About a month later, SCSD Superintendent Blanchard informed
Schiebel that the mother of a student had reported that Schiebel made
her daughter feel uncomfortable during the program and that he
would need to file Title IX paperwork. For several weeks thereafter,
Schiebel asked to be informed of the specific allegations, and SCSD
ignored his requests.
When SCSD finally agreed to discuss the matter with Schiebel,
the meeting lasted about twenty-five minutes. Schiebel alleges that
DuGuay, the Title IX coordinator of SCSD, was “hostile and
accusatory” throughout the meeting. When Schiebel arrived, DuGuay
told him that “her back was to the wall and she was aware of the
exits” because she was scared of him. DuGuay then informed Schiebel
of the accusations against him: A student had said that, during the
maple syrup program, Schiebel “reached around her with two hands
and had touched her breast and buttocks.” Schiebel did not recall the
complaining student or any such incident, but he said that it was
possible that “he may have reached around a student at one point in
the trailer to get something.” After Schiebel made this statement,
DuGuay abruptly ended the meeting.
Two weeks later, DuGuay determined that the sexual
harassment allegation against Schiebel was well-founded. In a letter
reporting the findings of her investigation, DuGuay explained that
the student had “alleged conduct that, whether intentional or not …
constitutes sexual harassment in violation of [school district] policy.”
DuGuay decided that the harassment occurred because Schiebel “did
not deny that he ‘may have reached around the Student’ while
attempting to reach for cups and supplies.” As a sanction, the school
district banned the Mobile Maple Experience from its campus for five
years. Schiebel lost his job as a result of DuGuay’s letter. Schiebel
appealed the decision to Blanchard, who upheld it.

-- 3 of 38 --

4
Schiebel then filed this lawsuit. He asserted a Title IX claim
against SCSD, alleging that SCSD erroneously found that he
committed sexual harassment because of its sex-based bias. He also
asserted state law claims against SCSD, DuGuay, and Blanchard. The
district court dismissed the Title IX claim, holding that although
Schiebel had plausibly alleged that the finding was erroneous, he had
not plausibly alleged that sex-based bias “was a motivating factor
behind the erroneous finding.” Schiebel v. Schoharie Cent. Sch. Dist.,
680 F. Supp. 3d 193, 202 (N.D.N.Y. 2023). The district court declined
to exercise supplemental jurisdiction over the state law claims.
We conclude that Schiebel has plausibly alleged that SCSD
discriminated against him on the basis of sex in violation of Title IX.
The complaint states a Title IX claim under either of two theories.
First, the allegations indicate that the school district was deliberately
indifferent to the truth or falsity of the accusations against him
because its investigation was so deficient as to constitute a sham
grievance process and its decision was inexplicable. Second, the
allegations indicate that the school district affirmatively
discriminated against Schiebel because the Title IX coordinator
exhibited bias against Schiebel based on his sex. We reverse the
judgment of the district court and remand for further proceedings
consistent with this opinion.
BACKGROUND
The complaint alleges the following facts. Keith Schiebel has
been an agriculture educator and maple syrup industry professional
for over thirty years. On behalf of the New York State Maple
Producers Association (“NYSMPA”), Schiebel developed the Mobile
Maple Experience, a “trailer with educational presentations that
shows the history and practice of using maple sap to make syrup and

-- 4 of 38 --

5
other maple products.” App’x 16 (¶ 67). Schiebel designed and built
the Mobile Maple Experience, wrote grant proposals and lobbied to
secure funding for it, and contacted hundreds of educators and
lawmakers to schedule visits of the Mobile Maple Experience to
schools. Schiebel himself conducted the programming, transporting
the mobile exhibit more than 10,000 miles with his truck to educate
thousands of students and other participants.
On June 2, 2021, Schiebel brought the Mobile Maple Experience
to the SCSD campus on behalf of the NYSMPA. As part of the
program, Schiebel directed ten high school students who made
presentations for elementary school students. Many adults were
present at the program, including the New York State Commissioner
of Agriculture and Markets, two representatives from the Capital
District Board of Cooperative Educational Services (“BOCES”),
NYSMPA Executive Committee member Dwayne Hill, a school
photographer, and more than thirty teachers and teachers’ assistants.
All the student presenters remained for the entire event, and the
“event was completed, with nothing but praise by the participants.”
Id. at 17 (¶ 74).
On June 28, almost a month later, SCSD Superintendent David
Blanchard emailed Schiebel to request that he “[p]lease contact the
Superintendent’s office at Schoharie regarding an issue a student
addressed with the district while the Maple Experience was here on
June 2nd.” Id. (¶ 77). Schiebel called Blanchard several times that day
and the next but could not reach him. On June 29, Blanchard called
Schiebel and, in a conversation that lasted less than three minutes,
told him that (1) the mother of a student had reported that Schiebel
made her daughter feel “uncomfortable,” (2) the mother “did not
want any further action taken,” and (3) Blanchard was nevertheless

-- 5 of 38 --

6
required to file Title IX paperwork. Id. at 17-18 (¶¶ 80-82).1 Blanchard
then “abruptly ended the call” without informing Schiebel of the
details of the alleged incident. App’x 18 (¶¶ 83-84).
On June 30, a representative of Capital District BOCES called
Schiebel regarding upcoming Mobile Maple Experience visits that
had been scheduled at Capital District BOCES schools. The
representative informed him that, because of the incident at SCSD, the
Mobile Maple Experience was no longer welcome at member schools
if Schiebel took part in the presentations.
On July 1, Schiebel emailed Blanchard stating that he wanted
to “better understand exactly what transpired” and requesting “any
documentation/written reports” that SCSD had produced about the
incident. Id. (¶ 89). Blanchard emailed back that he would follow up
with Schiebel during the week of July 12. On July 12, Schiebel emailed
Blanchard, again requesting documentation of the incident. On July
14, Blanchard responded by proposing a July 16 meeting on Zoom at
which “I can get your side of the concern and then complete the Title
IX document and send it to you.” Id. at 19 (¶ 93). Schiebel agreed to
meet but insisted that the meeting should be in person. Prior to the
meeting, Schiebel was not informed of the specific allegations against
him, provided with documentation, or informed that a Title IX
investigation had begun.
The July 16 meeting lasted less than twenty-five minutes. The
attendees were Schiebel, Blanchard, Assistant Principal and Title IX
Coordinator Kristin DuGuay, and NYSMPA member Paul Perry.
DuGuay was “hostile and accusatory” throughout the meeting. Id. at
1 Although the complaint states that Blanchard called Schiebel on “July 29,”
the chronology of events indicates that the call occurred on June 29.
App’x 17 (¶ 80).

-- 6 of 38 --

7
22 (¶ 127). When Schiebel entered the room, DuGuay told him that
this was a “serious matter” and that “her back was to the wall and she
was aware of the exits because of her concerns about Schiebel.” Id. at
20 (¶¶ 107-08).
DuGuay then explained the details of the investigation. A
student’s mother had called the day after the event and explained that
her daughter did not want to go to school that day “because she was
uncomfortable, because of the man in the trailer.” Id. (¶ 112). The
mother did not want the matter to proceed any further but DuGuay
nevertheless opened an investigation. DuGuay questioned the
student who, according to DuGuay, stated that Schiebel “had reached
around her with two hands and had touched her breast and
buttocks.” Id. at 21 (¶ 114). DuGuay contacted one other witness—a
student who was in the trailer at the time—who stated “that she had
not seen anything like the complainant described.” Id. at 22 (¶ 134).
Schiebel did not recall any incident in which he reached around
a student or even remember who the complainant was. It had been
six weeks since the SCSD event, and Schiebel had visited nineteen
different schools, interacting with more than 140 student presenters,
over the previous few months. In attempting to understand what
might have happened, Schiebel speculated that “he may have reached
around a student at one point in the trailer to get something” because
many of the supplies were kept in a cabinet where students had been
setting up the display for the presentations. Id. at 21 (¶¶ 119-20). He
did not admit that “he reached around a student with two hands” or
that “he had even accidentally touched a student’s breast or

-- 7 of 38 --

8
buttocks.” Id. (¶¶ 121-22). 2 DuGuay did not ask Schiebel any
questions about using two hands or an accidental touching. Instead,
shortly after Schiebel stated that he may have reached around a
student, DuGuay abruptly ended the meeting.
On July 30, 2021, DuGuay sent a letter to the NYSMPA, with a
copy to Schiebel, reporting the findings of her investigation.3 The
letter explained:
As a result of this investigation, which included
interviews with Mr. Schiebel, the Student, the Student’s
mother, and another student who was assisting with the
Maple Experience that day, I have determined that the
allegations in the Complaint are founded. The Student
alleged conduct that, whether intentional or not, was
unwelcome and had the effect of substantially or
unreasonably interfering with the Student’s
participation in an educational/extracurricular activity,
and/or created an intimidating, hostile, or offensive
learning environment. When asked whether he recalled
this incident, Mr. Schiebel did not deny that he “may
have reached around the Student” while attempting to
reach for cups and supplies. Based on the totality of the
circumstances, my investigation determined that this
conduct constitutes sexual harassment in violation of
Board policy.
2 DuGuay also accused Schiebel of telling female students to make things
“look pretty”—to which Schiebel responded that he said only to make the
displays look pretty. App’x 22 (¶¶ 125-26).
3 The letter and other communications between Schiebel and the
defendants were introduced as exhibits to the defendants’ motion to
dismiss.

-- 8 of 38 --

9
App’x 88. As a sanction for the sexual harassment, the school district
banned the Mobile Maple Experience from visiting the SCSD campus
for five years. After the five-year period, “before it may be permitted
back on District property,” the Mobile Maple Experience would need
to install cameras in the trailer and ensure that additional adult
observers were “present in the trailer whenever students are present.”
Id. at 89. Shortly after the NYSMPA received the letter, the NYSMPA
terminated all of its contracts with Schiebel.
On August 13, 2021, Schiebel appealed DuGuay’s findings to
Blanchard. Blanchard upheld the findings in his own letter. In that
letter, Blanchard concluded that Schiebel’s “failure and/or inability to
deny these allegations makes it more likely than not that the conduct
occurred as alleged.” Id. at 96. Blanchard rejected Schiebel’s
contention that his purported non-denial was merely an “attempt to
consider whether it is even possible that he brushed up against a
student during setup in the tight quarters of the exhibit trailer.” Id.
That explanation was not credible, according to Blanchard, because
Blanchard had “personally called Mr. Schiebel on June 28, 2021 to
notify him of the Complaint and to inform him that the District would
be conducting an investigation,” so Schiebel “had ample time prior to
[the] meeting … to consider the accuracy of the allegations against
him and to respond to the best of his knowledge.” Id. Blanchard
modified the sanctions DuGuay had imposed, however, to permit the
Mobile Maple Experience to visit the SCSD campus as long as
Schiebel was not “present on school grounds.” Id.
On October 26, 2022, Schiebel filed this lawsuit against SCSD,
alleging sex discrimination in violation of Title IX. The complaint also
asserted three state law claims against SCSD, DuGuay, and
Blanchard. The district court dismissed the Title IX claim based on its
conclusion that Schiebel had failed to plausibly allege that “gender

-- 9 of 38 --

10
bias was a motivating factor for the erroneous outcome” of the Title
IX investigation. Schiebel, 680 F. Supp. 3d at 202. The district court
declined to exercise supplemental jurisdiction over the state law
claims in light of its dismissal of the federal claim.
STANDARD OF REVIEW
“We review a district court’s grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff’s favor.” Henry v. County of
Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks
omitted). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A complaint alleging a violation of Title IX “is sufficient with
respect to the element of discriminatory intent … if it pleads specific
facts that support a minimal plausible inference of such
discrimination.” Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016);
see also Roe v. St. John’s Univ., 91 F.4th 643, 652 (2d Cir. 2024). We have
explained that the McDonnell-Douglas framework—which affords to
a Title IX plaintiff an initial “temporary ‘presumption’ of
discriminatory motivation” at the motion-to-dismiss stage, Columbia
Univ., 831 F.3d at 54 (quoting Littlejohn v. City of New York, 795 F.3d
297, 307 (2d Cir. 2015))—“reduces the plaintiff’s pleading burden, so
that the alleged facts need support only a minimal inference of bias,”
id. at 56.
DISCUSSION
“Title IX prohibits sex discrimination by recipients of federal
education funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
173 (2005). The statute provides that “[n]o person in the United States

-- 10 of 38 --

11
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.” 20 U.S.C.
§ 1681(a). The statute expressly provides for enforcement only by the
government, see id. § 1682, but the Supreme Court has recognized an
implied private right of action for injunctive relief and monetary
damages, see Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979); Franklin
v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). Because Title IX
imposes a condition on the receipt of federal funds, however, a
plaintiff may obtain damages only when “the funding recipient
engages in intentional conduct that violates the clear terms of the
statute.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 642 (1999); see Soule v. Conn. Ass’n of Schs., Inc., 90 F.4th 34, 57-58
(2d Cir. 2023) (Menashi, J., concurring) (describing the derivation of
this rule from the Pennhurst doctrine).
Title IX claims for monetary damages fall into two categories.
First, damages are available if the funding recipient affirmatively
discriminates through an official action or official policy, such as the
“disparate provision of programs, aid, benefits or services or
inequitable application of rules or sanctions.” Hayut v. SUNY,
352 F.3d 733, 750 (2d Cir. 2003); see also Soule, 90 F.4th at 52 (majority
opinion) (noting that “in cases ‘that do not involve official policy’ of
the school receiving federal funding, private damages are
unavailable” unless there is deliberate indifference) (quoting Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)).
Second, damages are available for acts of discrimination by
private individuals within the recipient’s program if “an official with
authority to act on the school’s behalf has ‘actual knowledge of [the]
discrimination in the recipient’s programs’ and is deliberately
indifferent.” Soule, 90 F.4th at 52 (quoting Gebser, 524 U.S. at 290).

-- 11 of 38 --

12
The premise of a deliberate indifference claim is that a recipient that
has actual notice of discrimination and the ability to take corrective
action but fails to do so has made “an official decision … not to
remedy the violation.” Gebser, 524 U.S. at 290; see also Soule, 90 F.4th at
59 (Menashi, J., concurring) (explaining that the Supreme Court
“confined the deliberate indifference framework to cases … that do
not involve official policy of the recipient entity” because only in such
cases is there “reason to require notice, opportunity to cure, and
deliberate indifference in order to establish the equivalent of an
official decision by the recipient”) (internal quotation marks omitted).
In this way, a showing of deliberate indifference establishes that the
recipient “itself intentionally acted in clear violation of Title IX” by
“subjecting” students and faculty within its program to “the
discriminatory misconduct of their peers.” Davis, 526 U.S. at 639, 642,
646 (alteration omitted); see also Delgado v. Stegall, 367 F.3d 668, 671
(7th Cir. 2004) (Posner, J.) (“Deliberate indifference means shutting
one’s eyes to a risk one knows about but would prefer to ignore. It
thus corresponds to the criminal definition of recklessness, which the
law treats as the equivalent of intentionality.”) (citations omitted).
I
A recipient’s inadequate response to allegations of sexual
misconduct within its program may give rise to a Title IX claim by the
accusing party (the “complainant”) or by the accused party (the
“respondent”). Both complainants and respondents may assert claims
under an official action theory or a deliberate indifference theory.
A
A person who was subjected to sexual harassment or other
misconduct within a recipient’s program may allege a Title IX
violation under either an official action theory or a deliberate

-- 12 of 38 --

13
indifference theory. Cf. Hayut, 352 F.3d at 750 (noting that sexual
harassment is sex discrimination) (citing Franklin, 503 U.S. at 75). A
complainant may allege discrimination by the recipient through an
official action—such as the recipient’s retaliation against students
who file complaints about sex discrimination or the recipient’s official
policy that discriminates on the basis of sex. See Jackson, 544 U.S. at
183 (“[R]etaliation presents an even easier case than deliberate
indifference. It is easily attributable to the funding recipient, and it is
always—by definition—intentional. We therefore conclude that
retaliation against individuals because they complain of sex
discrimination is ‘intentional conduct that violates the clear terms of
the statute.’”) (quoting Davis, 526 U.S. at 642); Soule, 90 F.4th at 42
(majority opinion) (holding that Title IX plaintiffs had standing to
challenge the recipient’s “policy permitting high school students to
participate on athletic teams consistent with their established gender
identity”); Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178
(10th Cir. 2007) (“[A] funding recipient can be said to have
intentionally acted in clear violation of Title IX when the violation is
caused by official policy, which may be a policy of deliberate
indifference to providing adequate training or guidance that is
obviously necessary for implementation of a specific program or
policy of the recipient.”) (internal quotation marks and citation
omitted).
A complainant may also allege discrimination by showing that
the funding recipient was “deliberately indifferent to known acts of
[sex] discrimination” by third parties within its program, such as
“sexual harassment, of which [the recipient had] actual knowledge,
that is so severe, pervasive, and objectively offensive that it can be
said to deprive the victims of access to the educational opportunities
or benefits provided by the school.” Davis, 526 U.S. at 643, 650; see also

-- 13 of 38 --

14
Plummer v. Univ. of Houston, 860 F.3d 767, 777 (5th Cir. 2017) (“[A]
recipient of federal funding[] can be held liable for intentional
discrimination on the basis of sex or for deliberate indifference to
discrimination against or harassment of a student on the basis of
sex.”).4 When the alleged discrimination is, for example, a student
harassing another student, “only deliberate indifference to such
harassment can be viewed as discrimination by school officials
themselves” and allows the discriminatory conduct to be attributed
to the recipient. Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d
134, 140 (2d Cir. 1999).
To qualify as deliberately indifferent, the recipient’s “response
to sex discrimination must be ‘clearly unreasonable’ in light of known
circumstances.” Papelino v. Albany Coll. of Pharmacy, 633 F.3d 81, 89 (2d
Cir. 2011) (quoting Davis, 526 U.S. at 648). In considering whether a
recipient’s response to a complaint of sexual misconduct is
unreasonable, a court will consider both “the timeliness [and the]
nature of the response.” Hayut, 352 F.3d at 751. A complainant might
establish deliberate indifference by showing that the recipient
“knowingly refused to take any action in response to the behavior,
such as investigating or putting an end to the harassment,” Papelino,
633 F.3d at 90 (internal quotation marks and alterations omitted), or
4 Title IX prohibits “deliberate indifference to discrimination.” Gebser, 524
U.S. at 290. Because “sexual harassment is discrimination in the school
context under Title IX, … student-on-student sexual harassment, if
sufficiently severe, can … rise to the level of discrimination actionable
under the statute.” Davis, 526 U.S. at 650 (internal quotation marks omitted).
Deliberate indifference to such harassment is actionable under Title IX
when the harassment is “so severe, pervasive, and objectively offensive that
it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school,” id.—that is, when the
harassment rises to the level of discrimination.

-- 14 of 38 --

15
that the response “only follow[ed] after a lengthy and unjustified
delay,” Hayut, 352 F.3d at 751 (internal quotation marks omitted).
A complainant might also allege that the grievance process was
so clearly irregular as to indicate that the process was a “sham.”
Cavalier v. Cath. Univ., 513 F. Supp. 3d 30, 51 (D.D.C. 2021); see Menaker
v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019); St. John’s Univ., 91 F.4th
at 660. Procedural irregularities such as the recipient’s failure to
comply with its own grievance policies or with applicable Title IX
regulations provide probative evidence of deliberate indifference,5
and a “wholesale failure to employ established procedures for
investigating sexual harassment complaints” might establish it,
Brodeur v. Claremont Sch. Dist., 626 F. Supp. 2d 195, 211 (D.N.H. 2009).6
5 See, e.g., Doe v. Yeshiva Univ., 703 F. Supp. 3d 473, 494 (S.D.N.Y. 2023)
(explaining that “the initial dismissal of Doe’s Title IX complaint without a
statement of reasons and an opportunity to appeal may support the claim
of deliberate indifference” because “Doe was entitled, under both [the
university’s] Policy and the Title IX regulations, not just to notice that [the
university] had dismissed her Title IX complaint, but also to a statement of
the reasons for that dismissal and a chance to appeal it”); Doe 1 v. Baylor
Univ., 240 F. Supp. 3d 646, 659 (W.D. Tex. 2017) (“While the Court agrees
that a school’s failure to comply with certain DOE guidelines generally
cannot, alone, demonstrate a school’s deliberate indifference, it also agrees
with numerous courts that DOE regulations may still be consulted when
assessing the appropriateness of a school’s response to reports of sexual
assault.”) (citation omitted).
6 In Gebser, the Supreme Court said that a recipient’s failure to comply with
regulations that required it “to ‘adopt and publish grievance procedures
providing for prompt and equitable resolution’ of discrimination
complaints and to notify students and others that ‘it does not discriminate
on the basis of sex in the educational programs or activities which it
operates’” did not “establish the requisite actual notice and deliberate

-- 15 of 38 --

16
B
This same framework applies to a person accused of sexual
misconduct who alleges that the recipient discriminated through
improper discipline or sanctions. Such a respondent may state a Title
IX claim by alleging that the recipient discriminated “on the basis of
the plaintiff’s sex when disciplining the plaintiff.” St. John’s Univ.,
91 F.4th at 652; see also 34 C.F.R. § 106.31(b) (“[A] recipient shall not,
on the basis of sex … [s]ubject any person to separate or different rules
of behavior, sanctions, or other treatment.”). Here too, a respondent
may establish a Title IX violation based on either an official action or
deliberate indifference.
First, a respondent may allege that the recipient affirmatively
discriminated on the basis of sex in its own official actions leading to
the imposition of discipline. To do so, the plaintiff must show that
indifference.” 524 U.S. at 291-92 (citations omitted) (quoting 34 C.F.R.
§§ 106.8(b), 106.9(a) (1997)). In that case, however, the school lacked actual
notice of the sexual harassment, so the regulatory failures of the school
could not establish deliberate indifference to acts of which the school was
unaware. We have held that when the recipient has actual notice of the
discrimination, the procedural regularity of the recipient’s response—such
as whether it addressed the discrimination by following established
procedures—is probative of deliberate indifference. See Hayut, 352 F.3d at
751 (concluding that a university’s response did not “amount[] to deliberate
indifference” because it proceeded “in a timely manner, and in accordance
with all applicable procedures”); see also McGrath v. Dominican Coll., 672
F. Supp. 2d 477, 489 (S.D.N.Y. 2009) (noting that Gebser “did not address
failure to ‘follow’ procedures”); Yeshiva Univ., 703 F. Supp. 3d at 494
(explaining that “Doe has alleged specific deficiencies in [the University’s]
response to and investigation of her Title IX complaint, including important
investigative leads that the University and its investigator did not pursue,
amounting to unreasonable conduct” and therefore “deliberate
indifference”).

-- 16 of 38 --

17
sex-based bias was “a motivating factor in the [recipient’s] decision to
discipline.” St. John’s Univ., 91 F.4th at 652 (quoting Yusuf v. Vassar
Coll., 35 F.3d 709, 715 (2d Cir. 1994)). We have described factual
scenarios that would indicate such discrimination—such as the
“erroneous outcome” and “selective enforcement” theories of
discrimination—but those theories are not “the only ways in which a
plaintiff may show that a university’s disciplinary proceedings
exhibit sex-based bias.” Id. at 653 n.9. The “key inquiry [is] whether a
plaintiff’s allegations support a ‘minimal plausible inference’ that he
was ‘subjected to discrimination on account of sex in the imposition
of … discipline.’” Id. at 666 (Menashi, J., dissenting) (quoting Columbia
Univ., 831 F.3d at 56).7
In the context of an official action claim, “procedural
irregularity alone may suggest some form of bias” on the part of the
recipient, but a plaintiff must also allege facts suggesting that the
“bias was on account of sex.” Vengalattore v. Cornell Univ., 36 F.4th 87,
107 (2d Cir. 2022) (internal quotation marks and alteration omitted).
A respondent might allege, for example, that the recipient had a
motive to discriminate on the basis of sex—such as public pressure to
7 See also Doe v. Purdue Univ., 928 F.3d 652, 667-68 (7th Cir. 2019) (Barrett, J.)
(“All of these categories simply describe ways in which a plaintiff might
show that sex was a motivating factor in a university’s decision to discipline
a student. We prefer to ask the question more directly: do the alleged facts,
if true, raise a plausible inference that the university discriminated against
[the plaintiff] ‘on the basis of sex’?”); accord Doe v. Univ. of Scis., 961 F.3d
203, 209 (3d Cir. 2020); Sheppard v. Visitors of Va. State Univ., 993 F. 3d 230,
236 (4th Cir. 2021); Overdam v. Tex. A&M Univ., 43 F.4th 522, 528 (5th Cir.
2022); Doe v. Univ. of Ark.-Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020);
Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 947 (9th Cir. 2020); Doe v. Univ.
of Denver, 1 F.4th 822, 830 (10th Cir. 2021); Doe v. Samford Univ., 29 F.4th 675,
687 (11th Cir. 2022).

-- 17 of 38 --

18
“favor the accusing female over the accused male in order to
demonstrate its commitment to protecting female students from male
sexual assailants.” Id. at 106 (internal quotation marks omitted)
(quoting Menaker, 935 F.3d at 32); see also Columbia Univ., 831 F.3d at
57. Or a respondent might allege that a school official exhibited a sex-
based bias when administering the disciplinary proceedings. See
Purdue Univ., 928 F.3d at 669 (“It is plausible that [the Title IX
coordinator] and her advisors chose to believe Jane because she is a
woman and to disbelieve John because he is a man. The plausibility
of that inference is strengthened by a post that [a university center]
put up on its Facebook page during the same month that John was
disciplined … [that] could be understood to blame men as a class for
the problem of campus sexual assault.”). The procedural flaws
suggest that the discipline was erroneously or selectively imposed—
and thus indicate the presence of discrimination—and the additional
evidence allows the inference that the discrimination was based on
sex.
Second, a respondent may allege that the recipient
discriminated through deliberate indifference. In such a case, the
respondent must show that the recipient was deliberately indifferent
to the truth or falsity of the accusations of sexual misconduct made
against him.8
8 The defendants in this case agree that such deliberate indifference violates
Title IX. See Oral Argument Audio Recording at 46:12 (Judge Menashi
asking counsel for defendants, “you did agree that if it were plausible that
the school just was indifferent, deliberately indifferent to the truth or falsity
of the accusations and just expelled [the respondent], that would be a
violation of Title IX?” and counsel for the defendants responding, “yes, if
there’s a sham investigation then of course”).

-- 18 of 38 --

19
In a deliberate indifference claim, the plaintiff seeks to hold the
recipient liable for failing to adequately respond to sex discrimination
of which the recipient had actual knowledge. Davis, 526 U.S. at 650.
We have recognized that a false accusation of sexual misconduct
qualifies as such discrimination. In Menaker, we explained that when
a complainant accuses the respondent not “of just any misconduct”
but “of sexual misconduct,” the “choice is significant, and it suggests
that [the respondent’s] sex played a part in her allegations.” Menaker,
935 F.3d at 38. “A rational finder of fact could therefore infer that such
an accusation was based, at least in part, on [the respondent’s] sex.”
Id. Indeed, we said that “courts may find it easy to draw an inference
of sex discrimination ‘in most male-female’ scenarios of malicious
allegations of sexual harassment … because ‘it is reasonable to
assume those allegations would not have been made concerning
someone of the same sex.’” Id. at 38 n.88 (alterations omitted) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).9
The malicious accuser’s sex-based discriminatory “intent may
be imputed to [the recipient]” when the recipient “controlled … the
very complaint process by which she sought to effectuate her
allegedly discriminatory intent” and the recipient effectively
“implemented” the accuser’s “discriminatory design.” Menaker, 935
F.3d at 39. If a respondent plausibly alleges that he was targeted by a
discriminatory accusation, and the recipient imposed discipline or
sanctions under circumstances that indicate deliberate indifference to
9 Cf. Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 149 (2d Cir. 2014)
(explaining that false charges of racial harassment made by white officers
against a black officer “could be viewed by a reasonable observer as
themselves racial harassment”); Riggins v. Town of Berlin, No. 23-868,
2024 WL 2972896, at *3 (2d Cir. June 13, 2024) (concluding that false
accusations of sexual misconduct constitute sexual harassment).

-- 19 of 38 --

20
the truth or falsity of the accusation, the respondent has stated a
deliberate indifference claim under Title IX.
As with a deliberate indifference claim by a complainant, a
respondent may show deliberate indifference through allegations
that the recipient’s grievance process was so “objectively deficient”
that it cannot be said to have aimed at uncovering the truth, St. John’s
Univ., 91 F.4th at 655 (majority opinion), or that its decision was so
“inexplicable” that the same inference could be drawn, id. (quoting
Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020)); see also Oirya v.
Brigham Young Univ., 854 F. App’x 968, 971 (10th Cir. 2021)
(recognizing that “the element of deliberate indifference” would be
met when a respondent shows that the recipient “ignored his
allegations that the accuser had lied”). A respondent states a
deliberate indifference claim when he plausibly alleges facts that raise
“grave doubts as to the merits of the decision itself,” St. John’s Univ.,
91 F.4th at 656 (internal quotation marks omitted), and that the
recipient knowingly “shut[] [its] eyes to [the] risk” that it was
imposing sanctions based on a malicious and therefore
discriminatory accusation, Delgado, 367 F.3d at 671.10
10 We recognize that the Sixth Circuit has said that “[t]he deliberate-
indifference theory was designed for plaintiffs alleging sexual harassment,”
which “is a form of discrimination for purposes of Title IX,” and that “to
plead a Title IX deliberate-indifference claim, ‘the misconduct alleged must
be sexual harassment,’ not just a biased disciplinary process.” Doe v. Baum,
903 F.3d 575, 588 (6th Cir. 2018) (quoting Doe v. Miami Univ., 882 F.3d 579,
591 (6th Cir. 2018)). Our circuit, however, has held that “malicious
allegations of sexual harassment” are also a form of “sex discrimination”
like sexual harassment itself. Menaker, 935 F.3d at 38 n.88. Deliberate
indifference to such discrimination in the recipient’s program qualifies as
discrimination by the recipient in the same way as deliberate indifference
to harassment or other acts of discrimination.

-- 20 of 38 --

21
II
Applying this framework, we conclude that Schiebel has
plausibly alleged that SCSD violated Title IX under either a deliberate
indifference theory or an official action theory. First, the allegations
state a deliberate indifference claim because SCSD’s investigation was
so procedurally deficient and the reasoning of its decision so dubious
that a reasonable factfinder could conclude that SCSD was
deliberately indifferent to the truth or falsity of the accusation.
Second, the allegations state an official action claim because the Title
IX coordinator exhibited a bias against men that, together with the
procedural irregularities, “support[s] a minimal plausible inference”
that Schiebel was “subjected to discrimination on account of sex in the
imposition of … discipline.” Columbia Univ., 831 F.3d at 56.
A
Schiebel has plausibly alleged a deliberate indifference claim.
In conducting its investigation, SCSD did not provide Schiebel with
even the rudiments of due process, such as timely notice of the
specific allegations against him, an opportunity to review or to
present evidence, and an unbiased decisionmaker. Moreover, in
deciding that the accusation against Schiebel was well-founded,
SCSD offered reasoning that was not only dubious but illogical. SCSD
relied on Schiebel’s statement that he may have reached around a
student to get supplies from a cabinet—even though that statement
was not an admission of sexual misconduct. SCSD also invoked a
tendentious definition of sexual harassment—that a single,
accidental, trivial contact qualifies as sexual harassment under the
district’s policy—that suggests SCSD was not impartially applying
district policy.

-- 21 of 38 --

22
1
Schiebel alleges clear procedural irregularities in SCSD’s
investigation and adjudication of the accusation against him. Among
those irregularities, Schiebel notes that SCSD failed to comply with
the Title IX regulations that required a funding recipient to follow
certain grievance procedures and with the district’s own policy—
Board Policy 7551—pursuant to which it purportedly conducted the
investigation and adjudication.
The Title IX regulations required SCSD to comply with certain
procedural requirements for addressing complaints of sexual
harassment. See 34 C.F.R. §§ 106.44, 106.45 (effective August 14, 2020,
to July 31, 2024). 11 The Title IX regulatory “requirements do not
purport to represent a definition of discrimination under the statute”
but the requirements nevertheless “effectuate the statute’s
nondiscrimination mandate.” Gebser, 524 U.S. at 292. That is because
a grievance process “lacking principles of due process risks bias that
in the context of sexual harassment allegations is likely to involve bias
based on stereotypes and generalizations on the basis of sex.”
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026,
30101 (May 19, 2020). The regulations accordingly provided that a
“recipient’s treatment of a complainant or a respondent in response
11 In evaluating whether SCSD’s investigation and adjudication of Schiebel
exhibited procedural irregularities, we rely on “the operative regulations at
the time” of SCSD’s conduct in 2021. Garcia v. Garland, 64 F.4th 62, 67 n.3
(2d Cir. 2023). SCSD acknowledges that the regulations applied to its
investigation and adjudication in this case. See Appellees’ Br. 18 (“District
policy and Title IX itself require a District to act when [it is] aware of an
allegation of sexual misconduct.”) (citing 34 C.F.R. § 106.45(b)(1)). Citations
therefore refer to those operative regulations.

-- 22 of 38 --

23
to a formal complaint of sexual harassment may constitute
discrimination on the basis of sex under title IX.” 34 C.F.R. § 106.45(a).
While the failure to follow a regulatory requirement does not
automatically establish that a recipient has contravened Title IX, the
violation of a procedural requirement is a “procedural irregularity”
that “may suggest some form of bias.” Vengalattore, 36 F.4th at 107. It
is well-established that “procedural deficiencies” in the
“investigation and adjudication” of a complaint of sexual misconduct
raise the inference that the recipient was biased rather than impartial.
Menaker, 935 F.3d at 31 (“[T]he procedural deficiencies in the
university’s investigation and adjudication of the sexual assault
complaint raised an inference that the university was motivated, at
least in part, by bias.”); see also Doe v. Univ. of S. Ind., 43 F.4th 784, 793
(7th Cir. 2022) (“[I]f procedural irregularities are sufficiently
numerous, lopsided, and/or important, they can sometimes support
an inference of sex discrimination.”); Univ. of Denver, 1 F.4th at 831
(“John has raised a reasonable inference that the University’s one-
sided investigation establishes a prima facie case of sex
discrimination.”); Oberlin Coll., 963 F.3d at 586 (“[C]lear procedural
irregularities in the College’s response to the allegations of sexual
misconduct … will permit a plausible inference of sex
discrimination.”) (internal quotation marks omitted).
The Title IX regulations required SCSD’s grievance process to
meet certain “[b]asic requirements.” 34 C.F.R. § 106.45(b)(1). Among
those requirements was that the recipient must “[t]reat complainants
and respondents equitably,” must ensure that a “Title IX Coordinator,
investigator, [or] decision-maker … not have a conflict of interest or
bias for or against complainants or respondents generally or an
individual complainant or respondent,” and must operate under a
“presumption that the respondent is not responsible for the alleged

-- 23 of 38 --

24
conduct until a determination regarding responsibility is made at the
conclusion of the grievance process.” Id. § 106.45(b)(1)(i), (iii)-(iv). A
recipient must also “[r]equire an objective evaluation of all relevant
evidence … and provide that credibility determinations may not be
based on a person’s status as a complainant, respondent, or witness.”
Id. § 106.45(b)(1)(ii). Furthermore, a recipient must provide written
notice of the allegations to the parties, and the notice must include
“sufficient details known at the time and with sufficient time to
prepare a response before any initial interview.” Id. § 106.45(b)(2)(i).12
The Title IX regulations provided additional requirements for
the recipient’s investigation of a complaint. See 34 C.F.R.
§ 106.45(b)(5). The recipient must “[e]nsure that the burden of proof
and the burden of gathering evidence sufficient to reach a
determination regarding responsibility rest on the recipient and not
on the parties.” Id. § 106.45(b)(5)(i). And the recipient must provide
each party with “an equal opportunity” both to present witnesses and
other evidence and to “inspect and review any evidence obtained as
part of the investigation … so that each party can meaningfully
respond to the evidence prior to conclusion of the investigation.” Id.
§ 106.45(b)(5)(ii), (vi). A recipient must also “[c]reate an investigative
report that fairly summarizes relevant evidence and, at least 10 days
prior to … [the] time of determination regarding responsibility, send
to each party … the investigative report in an electronic format or a
hard copy, for their review and written response.” Id.
§ 106.45(b)(5)(vii). Finally, the regulations provided that the
decisionmaker “cannot be the same person(s) as the Title IX
Coordinator or the investigator(s).” Id. § 106.45(b)(7)(i).
12 SCSD’s Board Policy 7551 similarly mandated a “prompt, equitable, and
thorough investigation.” App’x 11 (¶ 37).

-- 24 of 38 --

25
None of these required procedures were followed in this case.
First, the Title IX coordinator’s behavior reflected a “bias for or
against complainants or respondents” or against Schiebel in
particular, id. § 106.45(b)(1)(iii), and indicated that she had presumed
Schiebel to be guilty before the investigation had concluded—and
indeed before she had heard from Schiebel at all. But see id.
§ 106.45(b)(1)(iv) (requiring that a recipient’s grievance process
“[i]nclude a presumption that the respondent is not responsible for
the alleged conduct until a determination regarding responsibility is
made at the conclusion of the grievance process”). As Schiebel alleges,
DuGuay was “hostile and accusatory” at her first and only meeting
with him and said that “her back was to the wall and she was aware
of the exits” given the threat that she had already concluded he posed.
App’x 20-22 (¶¶ 108, 127). Schiebel also alleges that DuGuay abruptly
ended the meeting shortly after Schiebel made a statement that
DuGuay construed as an admission without permitting him to
present his case. That does not reflect an “objective evaluation of [the]
relevant evidence.” 34 C.F.R. § 106.45(b)(1)(ii).
Second, SCSD did not provide written notice of the allegations
to Schiebel with “sufficient details”—including “the conduct
allegedly constituting sexual harassment”—and “with sufficient time
to prepare response before [the] initial interview.” Id. § 106.45(b)(2)(i).
Blanchard did not notify Schiebel that there were any allegations
against him until nearly four weeks after the student’s mother called
the school district. Even then, Blanchard withheld the details of the
allegations and minimized the seriousness that SCSD ascribed to the
allegations. SCSD ignored Schiebel’s repeated requests to “better
understand exactly what transpired” and to see “any
documentation/written reports” about the incident, App’x 18 (¶¶ 89,

-- 25 of 38 --

26
92), until SCSD confronted him with the allegations at the initial—and
only—meeting at which he purportedly provided his response.
Third, SCSD did not give Schiebel an opportunity “to present
witnesses … and other … exculpatory evidence,” to “inspect and
review any evidence obtained as part of the investigation,” or to
“meaningfully respond to the evidence prior to [the] conclusion of the
investigation.” 34 C.F.R. § 106.45(b)(5)(ii), (vi). He did not receive
documentation of any of the relevant evidence—such as the student’s
mother’s telephone call, the complaining student’s testimony, or the
testimony of the student witness—and was never able to respond to
that evidence. He was confronted with the allegations at a meeting
that lasted twenty-five minutes and that did not feature the
complaining student or any of the witnesses. Before that meeting,
SCSD never notified Schiebel that it was even conducting an
investigation, so Schiebel certainly did not receive a meaningful
opportunity to respond. After the meeting, SCSD never provided
Schiebel with “an investigative report that fairly summarizes relevant
evidence” for his “review and written response” before the
determination of responsibility. Id. § 106.45(b)(5)(vii).
Fourth, SCSD did not meet its “burden of gathering evidence
sufficient to reach a determination regarding responsibility.” Id.
§ 106.45(b)(5)(i). SCSD interviewed only one other witness—another
student—who stated that she had not seen anything like what the
complaining student described. As Schiebel alleges, there were ten
students helping Schiebel with the presentations—along with dozens
of adults and many elementary school students who attended the
program—whom SCSD could have interviewed but did not.
Fifth, SCSD violated the Title IX regulation requiring a
separation between the investigator and the decisionmaker. Instead,

-- 26 of 38 --

27
SCSD empowered “the same person[]” to be both “the Title IX
Coordinator [and] the investigator” and the ultimate decisionmaker.
Id. § 106.45(b)(7)(i); see App’x 88-89.
Taken together, these procedural irregularities indicate that
SCSD’s investigation was not “sufficient,” “objective,” or “impartial,”
34 C.F.R. § 106.45(b), or “prompt, equitable, and thorough,” App’x 11
(¶ 37).13
2
In concluding that the accusation was well-founded, DuGuay
employed reasoning that was so unconvincing as to render her
decision inexplicable. On July 30, 2021, DuGuay issued a letter
containing the findings of the investigation. The letter explained:
13 Schiebel argues that there were two additional procedural irregularities.
First, Schiebel alleges that SCSD informed Capital District BOCES of the
allegations before the July 16 meeting and before the investigation
concluded; he argues that the disclosure indicates that the school district
had presumed him to be guilty and that it violated the provisions of Board
Policy 7551 that “complaints will be treated as confidentially and privately
as possible” and that “any disclosure will be provided on a ‘need to know’
basis.” App’x 11 (¶ 37). While the way in which SCSD disclosed the
allegations to BOCES might have reflected a presumption of guilt, it would
not necessarily be irregular to make some kind of disclosure to BOCES—
which apparently was involved in coordinating the Mobile Maple
Experience program at SCSD—that one of the students had made a
complaint regarding the program. Second, Schiebel alleges that the
student’s mother requested that the matter not proceed any further but the
district opened an investigation anyway. SCSD’s policy, however, provides
that it will investigate alleged incidents of harassment “even in the absence
of a complaint.” Id. (¶ 37); see also 34 C.F.R. § 106.30(a) (noting that “the Title
IX Coordinator” may sign a formal complaint “requesting that the recipient
investigate the allegation of sexual harassment”).

-- 27 of 38 --

28
As a result of this investigation, which included
interviews with Mr. Schiebel, the Student, the Student’s
mother, and another student who was assisting with the
Maple Experience that day, I have determined that the
allegations in the Complaint are founded. The Student
alleged conduct that, whether intentional or not, was
unwelcome and had the effect of substantially or
unreasonably interfering with the Student’s
participation in an educational/extracurricular activity,
and/or created an intimidating, hostile, or offensive
learning environment. When asked whether he recalled
this incident, Mr. Schiebel did not deny that he “may
have reached around the Student” while attempting to
reach for cups and supplies. Based on the totality of the
circumstances, my investigation determined that this
conduct constitutes sexual harassment in violation of
Board policy.
App’x 88. This purported explanation left the decision “sufficiently
‘inexplicable’ to warrant inferring” that the investigation was not
aimed at uncovering the truth. St. John’s Univ., 91 F.4th at 655-56
(quoting Oberlin Coll., 963 F.3d at 588). To begin with, the finding went
“against the substantial weight of the evidence.” Univ. of Ark.,
974 F.3d at 864. The only evidence that supported the allegations was
the complaining student’s apparent statement to DuGuay. The
student’s mother had told the district only that her daughter had felt
“uncomfortable” but she “did not want any further action taken,”
suggesting that she did not regard the matter as serious enough to
warrant further investigation. App’x 17-18 (¶¶ 81-82). The student
witness stated that “she had not seen anything like the complainant
described.” Id. at 22 (¶ 134). Schiebel also observes that SCSD did not
consider his record of twenty-five prior school visits without incident.

-- 28 of 38 --

29
Moreover, DuGuay treated Schiebel’s statement that he “may
have reached around the Student” while attempting to retrieve
supplies from a cabinet as an admission of guilt. But according to the
complaint—which we must accept as true at this stage—Schiebel
never admitted that he actually reached around a student, let alone
that he used two hands or that he touched a student when doing so.
Even drawing inferences against Schiebel—which we cannot do at this
stage—his statement at most suggested that he could have
accidentally brushed against a student when reaching for supplies.
Such a statement still would not support a finding of sexual
harassment because it does not describe unwelcome physical conduct
“of a sexual nature.” Id. at 10 (¶ 34) (Board Policy 7551). DuGuay’s
treatment of the statement as an admission—especially in light of
Schiebel’s allegation that DuGuay abruptly ended the meeting shortly
after the statement without giving him an opportunity to explain—
suggests that SCSD’s objective was to reach a finding of responsibility
rather than to determine what actually happened.
SCSD argues that the purported admission renders the
outcome of the investigation uncontestable. Appellees’ Br. 14. Any
procedural irregularities did not matter, according to SCSD, because
Schiebel “admittedly came into physical contact with the student in
question,” and the “fact that he did not necessarily admit
inappropriate physical contact is not … dispositive.” Id. at 14-15.
According to the allegations of the complaint, however, Schiebel
never admitted that he touched the student, let alone that he touched
her in a sexual manner. And even if Schiebel had admitted to
accidentally brushing against the student, that still would not have
supported a finding of sexual harassment or the drastic sanction of a
permanent ban from the SCSD campus.

-- 29 of 38 --

30
DuGuay’s letter relied on a tendentious definition of sexual
harassment. Board Policy 7551 defined sexual harassment as
“unwelcome sexual advances, requests for sexual favors and other
verbal or physical conduct or communication of a sexual nature when
… [s]uch conduct and/or communication has the purpose or effect of
substantially or unreasonably interfering with a student’s academic
performance or participation in an educational or extracurricular
activity.” App’x 10 (¶ 34). DuGuay’s letter concluded that Schiebel
had engaged in sexual harassment because the “alleged conduct …
whether intentional or not, was unwelcome and had the effect of
substantially or unreasonably interfering with the Student’s
participation in an educational/extracurricular activity, and/or
created an intimidating, hostile, or offensive learning environment.”
Id. at 88. The letter did not refer to the portion of the district policy
that defined sexual harassment as unwelcome conduct “of a sexual
nature” or even purport to find that the evidence met that standard.
The letter instead determined that Schiebel’s conduct amounted to
sexual harassment even if his conduct had been unintentional and
even if he had reached for supplies in a nonsexual manner.
It is possible that, in some circumstances, unintentional
conduct might qualify as sexual harassment.14 But the conclusion
that a single instance of inadvertent brushing against someone near a
supply cabinet qualified as sexual harassment appears to be
14 Cf. Katz v. City of Aurora, 85 F. Supp. 2d 1012, 1019 (D. Colo. 2000) (“The
City’s sexual harassment policy is not unconstitutional for including
unintentional as well as intentional conduct. … Hostile work environment
harassment occurs where sexual conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive work environment.”), aff’d,
13 F. App’x 837 (10th Cir. 2001).

-- 30 of 38 --

31
inconsistent with the district policy. Cf. Lucas v. S. Nassau Communities
Hosp., 54 F. Supp. 2d 141, 147 (E.D.N.Y. 1998) (“Harmless body
contact of an inadvertent non-sexual nature falls outside the broadest
parameters of sexual harassment.”); Mattson v. Caterpillar, Inc.,
359 F.3d 885, 889 (7th Cir. 2004) (“Mattson was not sexually harassed
when Cone’s breast allegedly brushed against his arm on a single
occasion.”). The complaint plausibly alleges that DuGuay
manipulated the policy to fit the evidence rather than impartially
applied the policy.
The appeal process did not fix the inexplicable character of
DuGuay’s decision but compounded the problem. In affirming
DuGuay’s findings, Blanchard explained his decision as follows. First,
Schiebel did not deny that he “put both of his arms around the
Student to reach around her to retrieve supplies from a drawer” or
that “he may have made contact with the Student’s breasts and/or
buttocks in doing so.” App’x 96. Second, Schiebel’s contention that his
statement was an “attempt to consider whether it [was] even possible
that he brushed up against a student” was not credible because
Blanchard “personally called Mr. Schiebel on June 28, 2021 to notify
him of the Complaint and to inform him that the District would be
conducting an investigation,” which means that Schiebel “had ample
time prior to meeting with Ms. DuGuay … to consider the accuracy
of the allegations against him and to respond to the best of his
knowledge.” Id. Third, the alleged conduct qualified as sexual
harassment under Board Policy 7551, which defines sexual
harassment as “unwelcome physical conduct of a sexual nature when
such conduct has the purpose or effect of substantially or
unreasonably interfering with a student’s academic performance or
participation in an educational or extracurricular activity.” Id.
(alterations omitted). The conduct “substantially or unreasonably”

-- 31 of 38 --

32
interfered with the student’s education because she “missed an entire
day of school as a result of the incident.” Id.
Blanchard thus continued to rely on Schiebel’s non-admission
as the primary evidence supporting SCSD’s decision and on an
interpretation of Board Policy 7551 according to which reaching for
supplies qualified as sexual harassment. And Blanchard introduced a
new error: He found that Schiebel’s statement supported the finding
of sexual harassment because Schiebel had received advance notice of
the allegations and therefore “had ample time” prior to the July 16
meeting to “consider the accuracy of the allegations against him and
to respond to the best of his knowledge.” Id. But Schiebel plausibly
alleges that he was never informed of the allegations against him
before the meeting and did not have time to formulate a response.
We conclude that Schiebel has stated a deliberate indifference
claim. He has alleged that the district’s grievance process was so
“objectively deficient” and its decision “sufficiently inexplicable” that
a reasonable factfinder could conclude that SCSD ran a sham process
because it was deliberately indifferent to the truth or falsity of the
accusation. St. John’s Univ., 91 F.4th at 655 (internal quotation marks
omitted). The alleged deficiencies in procedure and justification raise
“grave doubts as to the merits of the decision itself,” id. at 656 (internal
quotation marks omitted), and indicate that the district knowingly
“shut[] [its] eyes to [the] risk” that it was imposing sanctions based on
a discriminatory accusation, Delgado, 367 F.3d at 671. In short,
Schiebel plausibly alleges that SCSD had “actual notice” of
discrimination—the allegedly unfounded accusation of sexual
harassment—and exhibited “deliberate indifference” to it. Gebser,
524 U.S. at 292-93.

-- 32 of 38 --

33
B
In addition to plausibly alleging a violation of Title IX based on
SCSD’s deliberate indifference, Schiebel has also plausibly alleged
that SCSD violated Title IX through its own official action. To state an
official action claim, the plaintiff’s allegations must “support a
minimal plausible inference” that the recipient “subjected [him] to
discrimination on account of sex in the imposition of … discipline.”
Columbia Univ., 831 F.3d at 56; see also St. John’s Univ., 91 F.4th at 652.
A plaintiff may meet this minimal burden by alleging clear
procedural irregularity—which alone “may suggest some form of
bias”—and facts that “permit a plausible inference that the bias was
on account of sex.” Vengalattore, 36 F.4th at 107 (internal quotation
marks and alteration omitted).
Schiebel has met that standard here. He has alleged not only
clear procedural irregularities demonstrating bias, as detailed above,
but also facts indicating that the biased procedures resulted from a
sex-based bias against men. Schiebel alleges that the first and only
time DuGuay met with Schiebel to investigate the accusation against
him, DuGuay was “hostile and accusatory” and stated that “her back
was to the wall and she was aware of the exits” because she perceived
Schiebel as a threat to her safety. App’x 20-22 (¶¶ 108, 127). DuGuay’s
behavior allows the reasonable inference not only that she had
prejudged the accusation against Schiebel but that she did so “based
on invidious sex stereotypes.” Sassaman v. Gamache, 566 F.3d 307, 314
(2d Cir. 2009). “[I]t is reasonable to infer a discriminatory state of
mind from [DuGuay’s] remark” that she needed to remain guarded
when Schiebel was present; that remark plausibly reflected an
assumption “that men have a propensity to sexually harass women.”
Id. Because DuGuay made the remark while conducting the
investigation and adjudication on behalf of SCSD—“the allegedly

-- 33 of 38 --

34
discriminatory act” that is the subject of this lawsuit—the remark
“tended to ‘show that the decision-maker was motivated by
assumptions or attitudes relating to the protected class.’” Id. (quoting
Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007)).
Given that the remark was made by the person who decided on behalf
of SCSD to find Schiebel responsible for sexual harassment, it “could
reasonably be construed, furthermore, as explaining why that
decision was taken.” Id. (quoting Tomassi, 478 F.3d at 116).
We have held that a decisionmaker’s “alleged comment on the
propensity of men to engage in sexual harassment” and the
defendants’ “arguable failure to investigate properly the charges of
sexual harassment” lodged against a male respondent were
“sufficient to permit a jury to infer discriminatory intent.” Id. at 315.
So too here.15
SCSD argues that DuGuay’s conduct may have indicated that
she was biased against those accused of sexual harassment—that is,
15 Schiebel additionally alleges that the district faced pressure to
discriminate against men accused of sexual misconduct from government
policy, such as the 2011 Dear Colleague letter, and from activism
surrounding the then-ongoing sexual harassment controversy involving
Governor Andrew Cuomo. We have said that “when combined with clear
procedural irregularities in a [recipient’s] response to allegations of sexual
misconduct, even minimal evidence of pressure on the [recipient] to act
based on invidious stereotypes will permit a plausible inference of sex
discrimination.” Menaker, 935 F.3d at 33. Evidence of such pressure is
important in the absence of direct evidence that the recipient relied on such
stereotypes. Because we agree with Schiebel that DuGuay’s conduct as the
decisionmaker provides direct evidence of SCSD’s sex-based
discriminatory intent, we need not decide whether the public pressure on
SCSD would be sufficient, in the absence of that direct evidence, to permit
a plausible inference of sex discrimination.

-- 34 of 38 --

35
respondents—but did not necessarily indicate that she was biased
against men on the basis of sex. According to SCSD, plausible
allegations that the outcome of the investigation was prejudged do
not “necessarily mean that the outcome was the result of gender bias”
because such allegations may indicate “a preference to believe the
victim.” Appellees’ Br. 18.
That interpretation of the allegations in this case amounts to an
admission that the “Title IX Coordinator, investigator, [and] decision-
maker” conducting the investigation and adjudication on behalf of
SCSD exhibited a “bias for or against complainants or respondents
generally” and failed to adopt a “presumption that the respondent is
not responsible for the alleged conduct until a determination
regarding responsibility is made at the conclusion” of the
investigation. 34 C.F.R. § 106.45(b)(1)(iii), (iv). In other words, SCSD
conducted a biased rather than an impartial investigation. Even
assuming that an “anti-respondent bias” can be distinguished from
an “anti-male bias” here, 16 the presence of such a bias would
represent a serious procedural irregularity—and it would suggest
that the recipient was deliberately indifferent to the truth or falsity of
the accusation it was purportedly investigating.
At this stage, however, the allegations of DuGuay’s conduct
raise a reasonable inference that she discriminated against Schiebel on
the basis of sex. On a motion to dismiss, we must “draw reasonable
inferences in favor of the sufficiency of the complaint.” Columbia Univ.,
16 The viability of this distinction, as a general matter, has been questioned.
See St. John’s Univ., 91 F.4th at 671 (Menashi, J., dissenting) (“[A]n anti-
respondent bias is a sex-based bias.”); Oberlin Coll., 963 F.3d at 587 (“[T]he
100 percent responsibility rate—in cases where most if not all the
respondents were male—supports an inference regarding bias in the
hearings themselves.”). But we need not resolve the issue here.

-- 35 of 38 --

36
831 F.3d at 57. The plausibility standard “does not require that the
inference of discriminatory intent supported by the pleaded facts be
the most plausible explanation of the defendant’s conduct. It is
sufficient if the inference of discriminatory intent is plausible.” Id.; see
Iqbal, 556 U.S. at 678 (2009) (“The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.”) (quoting Twombly, 550 U.S.
at 556).
We have previously rejected the argument on which SCSD
relies. In Columbia University, we concluded that the plaintiff had
plausibly alleged that university administrators who committed
procedural irregularities in the imposition of discipline were
“motivated in those actions by pro-female, anti-male bias.” 831 F.3d
at 56. The university argued that the allegations did “not support an
inference of intentional sex discrimination” because “any motivation
on the part of the [disciplinary] panel to demonstrate that it takes
[sexual misconduct] complaints seriously is not the same thing as a
motivation to discriminate against an accused male student.” Id. at 57.
In other words, the administrators might have exhibited a “bias in
favor of Jane Doe,” the complainant, because of an anti-respondent or
a pro-complainant bias that was not based on sex. We said that
adopting such an explanation was improper on a motion to dismiss
because “[i]t is not the court’s function in ruling on a motion to
dismiss for insufficiency of the complaint to decide which was the
defendant’s true motivation” as opposed to which inferences are
reasonable. Id. at 57 n.10.
In this case, adopting SCSD’s argument would require us to
conclude that the only reasonable inference to be drawn from
DuGuay’s conduct is that she was biased against anyone accused of
sexual misconduct—male or female—and that she would have

-- 36 of 38 --

37
expressed the same fear for her safety in the presence of a female
respondent as she did with Schiebel. We do not agree that this is the
only reasonable inference—or even the most reasonable inference—
that may be drawn from the allegations. Title IX, like Title VII,
“requires that, in the course of investigating [sexual misconduct]
claims, [recipients] do not presume male [respondents] to be ‘guilty
until proven innocent’ based on invidious sex stereotypes.” Sassaman,
566 F.3d at 314. Schiebel’s allegations raise the plausible inference that
the Title IX coordinator conducting his investigation did just that, and
as the decisionmaker for SCSD her discriminatory conduct reflects an
official action by the district. Cf. Columbia Univ., 831 F.3d at 58-59 (“[A]
defendant institution is not shielded from liability for discrimination
practiced by an employee endowed by the institution with
supervisory authority or institutional influence in recommending and
thus influencing the adverse action by a non-biased decision-
maker.”).
III
Schiebel also asserted three state law claims against SCSD,
Blanchard, and DuGuay: tortious interference with contract,
negligent infliction of emotional distress, and reckless and wanton
misconduct. The district court dismissed these claims without
prejudice, declining to exercise supplemental jurisdiction following
its dismissal of the federal claim. Because we reverse the dismissal of
the Title IX claim, however, “we also vacate the dismissal of
[Schiebel’s] state law claims to allow the district court to reconsider
whether to exercise supplemental jurisdiction over these claims.”
Barnes v. City of New York, 68 F.4th 123, 133 (2d Cir. 2023).

-- 37 of 38 --

38
CONCLUSION
Schiebel’s complaint plausibly alleges that SCSD discriminated
against him on the basis of sex in violation of Title IX. We reverse the
judgment of the district court insofar as it dismissed Schiebel’s Title
IX claim, vacate the judgment insofar as it dismissed his state law
claims, and remand for further proceedings consistent with this
opinion.

-- 38 of 38 --