Students wrongfully disciplined for alleged sexual misconduct on campus have had a difficult time convincing federal courts to entertain lawsuits based on Title IX, the federal law prohibiting gender discrimination in education. Although the Department of Education has used (some would say exceeded) its administrative authority under Title IX to compel schools to adopt detailed policies for addressing and adjudicating complaints of sexual misconduct, courts were hesitant to recognize claims of unfairness in these campus tribunals based on Title IX itself. An example of this approach, which I have covered before, was a federal district court’s dismissal of a lawsuit against Columbia University for failure to identify a “smoking gun” demonstrating that the flaws in Columbia’s investigation of an alleged sexual assault were specifically due to gender bias. Although a few courts more recently found that plaintiffs had made out a sufficiently plausible case to proceed, they did not challenge the basic idea that someone bringing this type of case needs to have at least some evidence of gender bias at the outset.
But the Second Circuit Court of Appeals recently reversed the Columbia case, holding that the district court had required too much of the plaintiff without the benefit of discovery in the course of litigation. Briefly, the male plaintiff in the Columbia suit, identified as John Doe, had sex with a female fellow student in the bathroom of her suite; she later alleged that the interaction was not consensual. Doe claimed that he was not informed of his rights, that Columbia’s investigator never followed up on his witnesses or evidence, and that he was precluded from offering evidence in his favor. He was suspended for 3 semesters, which even the complainant stated was too harsh. Continue reading →