Cases & Developments

Opinion affirming-in-part, reversing-in-part, and remanding summary judgment in favor of the University. Plaintiff, John Doe, a former student at Rice University, brought contract and Title IX claims against the University after he was disciplined for recklessly exposing Jane Roe, a consensual sexual partner, to herpes. The Fifth Circuit affirmed summary judgment on Doe’s contract claims, finding he had not alleged a breach of the University’s Code of Conduct and noting that the Code expressly provided that its procedures “are not those used in court cases and are not intended to create contractual rights.” Viewing the evidence in the light most favorable to the nonmovant, the Fifth Circuit reversed summary judgment on Doe’s three asserted theories under Title IX. It found a material fact question as to erroneous outcome, noting that the record supported that Doe had informed Roe of his history with herpes. It found a question of selective enforcement support by allegations that the University did not investigate Doe’s claim that Roe had already contracted herpes and did not warn him of the risk she posed to him. Finally, it found a question as to archaic assumptions in the apparent expectation that it was Doe’s responsibility to explain to Roe the risk associated with consensual sex, even though the record indicated that she later explained to him how the herpes virus can remain dormant.