Much has been made about allegations of sexual assault on college campuses in recent years. At first the discussion centered on victim’s rights advocates’ claims that colleges swept allegations of sexual assault under the rug. Starting in 2001, and escalating in 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) began issuing guidance dictating how federal funding recipients (i.e. virtually all colleges and universities) should handle sexual assault claims. Many point to the OCR’s 2011 “Dear Colleague” letter, which instructed schools to lower the standard of proof they use in these cases to a “preponderance of the evidence” standard, as a turning point in the national discussion about college sexual assault. As we have previously noted on this blog, schools jumped to follow OCR’s guidance for fear of losing federal funding.
As the policies and procedures that have been implemented in the wake of the 2011 OCR “Dear Colleague” letter have gone into effect, there has been a sea change in how schools address allegations of sexual assault by and against their students. Recently, journalists, legal experts, and those of us who represent accused students have raised concerns that the procedures put in place to address sexual assault claims do not comport with basic notions of fairness or due process, and therefore may not be accurate at determining whether sexual assault has actually occurred. As those concerns were first being aired in the public discourse, students who had been disciplined by their schools following sexual assault adjudications began to sue the schools, alleging that they had violated their rights to due process, had violated Title IX itself, and had violated contracts the students had with the schools. To date, at least seventy-seven men have filed suit against their colleges on these grounds.
Now that we are in the thick of the movement by these students to hold their schools accountable for faulty procedures and erroneous outcomes, it seems time to assess how these lawsuits are faring. The outcomes of the cases vary widely. Of the 77 cases collected in the database linked above, at least 30 are still pending. Another dozen or so have been resolved by settlement. Those that have been decided by judges have been a surprisingly mixed bag. In many cases judges have simply found for the school, finding no violation of state or federal law. In a few cases, judges have dismissed plaintiffs’ claims without prejudice, allowing the plaintiff to replead the claim.
Most plaintiffs’ Title IX claims have failed for lack of sufficient evidence of gender bias. For example, in May 2015, in Doe v. University of South Florida Board of Trustees, the judge found that the plaintiff had alleged that the university’s policies had a disparate impact on men, but that “disparate impact” claims are not cognizable under Title IX, and the plaintiff had failed to allege the necessary intentional discrimination to make out a Title IX claim. Two years earlier, in Bleiler v. Holy Cross, a federal judge in Massachusetts had held that disparate impact claims are cognizable under Title IX, but found that in that case the evidence did not support the plaintiff’s claim that once a man was accused of sexual assault it was a “foregone conclusion” that he would be found responsible and expelled.
In Sahm v. Miami University, the court found that the plaintiff’s allegations that the proceedings against him were unfair, and that virtually all sexual misconduct proceedings at the university involved male respondents, were insufficient to make out a Title IX claim of discrimination. The court contrasted the case with Wells v. Xavier University, where the plaintiff’s allegation that his discipline was handed out in response to a DOE investigation of the school, and was aimed at demonstrating that the school would take action against men accused of sexual assault. In Wells the court found those allegations to be sufficient to allow plaintiff’s Title IX claim to survive a motion to dismiss.
In addition to Wells, one other plaintiff recently sufficiently pled facts to allow his Title IX claim to survive a motion to dismiss. Just this month a federal judge denied Washington & Lee University’s motion to dismiss a Title IX claim, reasoning that a school administrator’s presentation (wherein she endorsed an article that seemed to say that any time a woman regrets having sex the interaction was not consensual) provided enough evidence to allow an inference of gender bias against men. Other plaintiffs in recent cases, while failing to persuade a court of gender bias, have succeeded on claims of breach of contract, negligence, or by demonstrating that the school acted arbitrarily and capriciously in administering its policies.
These cases demonstrate how unsettled and variable the law in this area currently is. Cases like Wells and Doe v. Washington & Lee University indicate that judges may be willing to consider male students’ Title IX claims, and look closely not only at the college’s policies and practices, but at the surrounding context and actions of school administrators in assessing the climate that led to the student’s discipline.
Read more about Zalkind Duncan & Bernstein’s academic practice here.