Trevor Johnson v. Marian University

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 16, 2020
Decided November 20, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1165
TREVOR JOHNSON,
Plaintiff-Appellant,
v.
MARIAN UNIVERSITY,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 2:19-cv-388
J.P. Stadtmueller,
Judge.
O R D E R
This is a Title IX sex discrimination case. Plaintiff Trevor Johnson, a male student
at Marian University, met “Jane Roe” during their freshman year. Johnson and Roe
drank at a party one night in September 2017, went back to Roe’s room, and had sex.
The next morning, Roe could not remember having intercourse.
A year later, Roe accused Johnson of taking advantage of her in her inebriated,
blackout state. Johnson claimed the sex was consensual. Marian’s Title IX officials,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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including dean of students Dr. Paul Krikau, investigated Roe’s complaint and found
Johnson responsible. Johnson received a two-year suspension from the school.
Johnson sued Marian, claiming it discriminated against him because of his sex in
concluding he was at fault. The district court granted summary judgment for Marian
and Johnson appeals. We review summary judgment de novo, asking whether a genuine
dispute exists over any material fact. Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th
Cir. 2019).
A Title IX discrimination claim requires proof that (1) the educational institution
received federal funding, (2) the plaintiff was excluded from participation in or denied
the benefits of an educational program, and (3) the educational institution in question
discriminated against the plaintiff based on gender. Doe v. Columbia Coll. Chicago, 933
F.3d 849, 854 (7th Cir. 2019). The first two elements are not at issue. This case boils
down to whether Marian discriminated against Johnson “on the basis of his sex.” That
is the test. Id. at 854–55; Doe v. Purdue Univ., 928 F.3d 652, 667–68 (7th Cir. 2019).
The record does not permit a finding of sex discrimination here. Johnson leans on
an alleged anti-male, pro-feminist culture at Marian fueled by politics and current
events. In particular, he cites the Department of Education’s 2011 “Dear Colleague”
letter, which pressured universities to prioritize resolving campus sexual assault cases
or else lose federal funding. For Marian, the potential loss of federal funds was more
than abstract in light of a recent investigation by the Office of Civil Rights—a sub-
agency of the Department of Education—into its handling of sexual assault complaints.
Johnson also notes Marian’s Title IX training educated administrators on the #MeToo
movement’s impacts. And he highlights campus sexual assault awareness events that
featured accounts of mostly female accusers. All of this, Johnson claims, conditioned
Marian’s Title IX administrators to favor female complainants and discriminate on the
basis of sex.
We have acknowledged this sort of background can be relevant for assessing
Title IX sex discrimination claims. See Columbia Coll., 933 F.3d at 855 (considering
campus events “aimed at raising awareness of sexual assault issues”); Purdue, 928 F.3d
at 668–69 (recognizing Dear Colleague letter and recent OCR investigations of school as
relevant). But a plaintiff cannot rely on such generalized information alone; he must
combine it with facts creating an inference that, in his specific case, the institution treated
him differently because of his sex. Columbia Coll., 933 F.3d at 855 (citing Doe v. Baum, 903
F.3d 575, 586 (6th Cir. 2018)). And although our decisions in Columbia College and Purdue

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examined the issue through the pleadings lens, this requirement does not dissipate at
summary judgment.
Johnson tries to prove this connection by referencing statements Dr. Krikau made
while conducting Roe’s initial interview. In a few places, Dr. Krikau noted that the
events as described by Roe amounted to violations of university policy. From these
statements, Johnson infers Dr. Krikau jumped to conclusions and determined Johnson’s
guilt based on Roe’s first impression and report alone. But even were that an accurate
reading of the interview transcript, Dr. Krikau’s statements reveal no sex-based bias.
Nothing suggests he believed Roe’s account simply because she was a female; his
comments were “divorced from gender.” Columbia Coll., 933 F.3d at 856. At most, they
demonstrate a pro-victim bias, but both women and men can be victims of sexual
assault.
Johnson also points to several posts from Dr. Krikau’s personal Twitter account
as evidence of anti-male bias. Around the time of Johnson’s investigation, Dr. Krikau
endorsed Dr. Christine Blasey Ford as a hero for accusing now-Justice Kavanaugh of
sexual misconduct. He also defended a woman who complained of having to be
selective about reporting harassment. These posts have no connection to Johnson’s case.
They do not call into question Dr. Krikau’s ability to review Roe’s allegations
objectively.
These facts do not rise to the level of those alleged in Purdue. In that case, like
here, a male college student sued his school for sex discrimination after being found
responsible for a non-consensual sexual encounter with a female student. We reversed
dismissal of plaintiff’s Title IX claim because he plausibly alleged the school’s
adjudicators credited the female accuser over him based on sex. The accuser provided
neither written nor oral account. Her story was summarized through a letter crafted by
the director of a campus victim support center—the same organization that, within a
month of plaintiff’s discipline, promoted a Washington Post article titled, “Alcohol isn’t
the cause of campus sexual assault. Men are.” 928 F.3d at 669–70 (emphasis added). And
two of the three administrators on the disciplinary panel admitted they took no
evidence into account other than the female student’s accusations as described in that
letter. Id. at 669. These allegations created an inference of gender bias. Dr. Krikau’s
interview statements and unrelated social media musings, on the other hand, do not.

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We often call summary judgment the “put up or shut up” stage of litigation.
Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). But the record here leaves nothing
for the jury to decide. Dr. Krikau’s interview statements reveal no gender bias. Nor does
his personal social media activity cast doubt on his review of Johnson’s case. Johnson is
left with general allegations about the school administration’s perceived anti-male
culture. That is not enough to create a triable issue on sex discrimination, so we
AFFIRM summary judgment for Marian University.

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