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Streno v. Shenandoah University

United States District Court, W.D. Virginia, Harrisonburg Division

September 30, 2017



          Elizabeth K. Dillon United States District Judge.

         Plaintiff Spencer Streno, a former student at defendant Shenandoah University (Shenandoah or the University), filed this action after he was dismissed from the University. Streno's first amended complaint asserts claims for breach of implied and express contract, violation of Title IX of the Education Amendments Act of 1972 (Title IX), 20 U.S.C. § 1681, and violation of 42 U.S.C. § 1981, all of which stem from allegations that Shenandoah discriminated against Streno on the basis of his sexual orientation and failure to conform to gender norms when it erroneously determined that Streno had committed sexual assault and dismissed him. Streno also claims that Shenandoah used his picture in an advertisement for a University-sponsored event without his permission in violation of Virginia Code § 8.01-40. (See generally First Am. Compl. (Compl.), Dkt. No. 18.) Before the court is Shenandoah's motion to dismiss Streno's claims. That motion has been fully briefed and was argued before the court. For the reasons stated below, the court will grant Shenandoah's motion to dismiss Streno's Title IX and § 1981 claims and decline to exercise jurisdiction over the remaining state law claims.

         I. BACKGROUND

         Spencer Streno, an openly homosexual man with “more feminine tendencies and mannerisms than typical heterosexual men” (Compl. ¶ 10), enrolled at Shenandoah University[1]in August 2012. As a musical theater student, Streno was a member of “the Conservatory, ” a group of students working toward various degrees in the performing arts. He was also a member of an improvisational comedy troupe called “LOAF.” Until the final semester of his senior year, Streno's record at Shenandoah was free of disciplinary issues. However, on February 15, 2016, Taylor Bloom and Riley Scott-two friends of Streno's and fellow members of the Conservatory and LOAF-filed complaints with the University, accusing Streno of sexually assaulting them in November 2013 and April 2014, respectively.

         Bloom's complaint asserted that Streno sexually assaulted him in November 2013 after a cast party for a theater production where “all parties involved” consumed a large amount of alcohol. (Id. ¶ 21.) Following the party, at which Streno and Bloom were observed “playfully kissing, ” Streno drove Bloom and a female student back to the dormitories. (Id. ¶ 26.) At some point that night, Bloom came to Streno's room, and the two began to kiss. Streno attempted to touch Bloom's penis, but stopped when Bloom said “we should stop.” (Id.) Bloom claimed that he was “blacked out” from the alcohol that he had consumed and believed he was kissing the female student that had returned to the dormitory with him and Streno, rather than Streno. (Id. ¶ 24.) However, Bloom did not state that the kiss was nonconsensual, and admitted it was possible that he kissed Streno back. Streno and Bloom remained close following the alleged assault: Streno asserts that he and Bloom kissed at many public parties during their time as classmates, and he submitted with his complaint a picture of Bloom kissing him on the cheek over a year after the cast party.

         Scott's complaint alleged that Streno assaulted him at a party following a LOAF event that was hosted by another school's improvisation group in April 2014. Scott claimed that, during the party, Streno put his hand under Scott's crotch and used his fingers to lift Scott off the couch while simultaneously penetrating his anus through his clothes. Though Streno's memory of that night is “basically eradicated” due to his alcohol consumption (id. ¶ 31), he notes that the alleged act is “physically impossible” and that no one from Shenandoah or the other school reported any assault. (Id. ¶ 34.) Like Bloom, Scott remained close with Streno following the alleged assault, and Streno's complaint included pictures of Streno and Scott hugging months after the incident. Streno alleges that he had an argument with Scott about LOAF via text message shortly before Scott filed his complaint and that Scott filed the complaint to retaliate against him for the actions that led to the argument.[2]

         During Shenandoah's investigation into the sexual assault allegations, another witness claimed that Streno had forcibly pushed and kissed him at the Winchester Apple Blossom Festival at some point between April 24 and May 3, 2015. Although Streno admits that he kissed the witness at the Harvest Festival, he claims that the kiss was consensual. Again, Streno submitted a photograph of himself and the witness kissing on May 2, 2015, apparently consensually.

         On February 24 and March 8, 2016, Streno met with Whitney Pennington, Shenandoah's Title IX Coordinator. Streno claims that Pennington's investigation was “inadequate and biased” and that the “finding report” she prepared failed to include evidence of the text messages between Streno and Scott and interviews with Streno's witnesses. (Id. ¶¶ 43-44.) Pennington then referred the matter to a formal hearing panel for a hearing on March 28, 2016. At that hearing, Streno asserts, the panel did not give appropriate weight to evidence of his innocence, including pictures of Bloom and Scott being affectionate with Streno after the alleged incidents. The hearing panel also denied Streno the chance to make an impact statement as required by Shenandoah's policy.

         After the hearing, Streno received a letter from the hearing panel chair informing him that the panel was recommending that Streno be dismissed from the University. Streno appealed the decision to the appeal officer on the grounds that he was not allowed to make an impact statement. Streno's appeal also discussed a statement from a witness who had seen Bloom and Streno kissing consensually at the November 2013 party and noted that, even by Bloom's description, the November 2013 encounter between Streno and Bloom was consensual. Streno's appeal was upheld because he had been denied the opportunity to make an impact statement; however, on May 4, 2016, ostensibly after giving Streno the chance to make a victim impact statement, the hearing panel upheld Streno's dismissal.

         On October 21, 2016, Streno filed this action against Shenandoah, claiming breach of implied and express contract and violations of Title IX and § 1981. On December 5, 2016, roughly seven months after Streno was expelled from the University, graduated students received a flyer advertising an alumni reunion for Conservatory graduates from Shenandoah's Alumni Association. The flyer included a picture of Streno. Streno claims that he never gave Shenandoah permission to use the picture and that any implied permission he gave was revoked when he was dismissed from the University. Streno subsequently amended his complaint to include a claim for unauthorized use of his image under Virginia Code § 8.01-40.


         A. Standard of Review

         To survive a motion to dismiss under Rule 12(b)(6), “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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” Iqbal, 556 U.S. at 678, and establishes “more than a sheer possibility that a defendant has acted unlawfully.” Id. Unadorned allegations of wrongdoing, “formulaic recitation[s]” of the elements of a claim, and “‘naked assertions' devoid of ‘further factual enhancement'” are insufficient to state viable claims. Id. (quoting Twombly, 550 U.S. at 555-57).

         B. ...

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