Courts Are Starting to Permit Title IX Lawsuits by Accused Students to Go Forward
As we have covered before on this blog, courts have generally been inhospitable to Title IX claims by students accused of sexual misconduct on campus, often dismissing them in the early stages before the students have a chance to obtain evidence through discovery. The most common theory for a Title IX violation is the “erroneous outcome” theory outlined in Yusuf v. Vassar College: to state a claim under this theory, a student disciplined for sexual misconduct must make some showing that the disciplinary process was unfair, combined with “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”
Unfortunately for plaintiffs, evidence of this sort of gender bias is frequently hard to come by. Even when there is a “smoking gun” document or email, it is often locked away within the university until and unless a court orders it revealed. (The Washington & Lee case, where the Title IX officer had expressed on a public website her view that a woman is sexually assaulted when she has sex and then regrets it, is a rare exception.) The requirement that a plaintiff come forward with particulars at the very beginning of the case fits awkwardly with the standard by which claims are judged when the school, almost invariably, files a motion to dismiss. Since 2007, and especially after the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, plaintiffs have had to make enough specific factual allegations at the beginning of a case to make their legal claims “plausible” in the eyes of the judge. I have discussed previously on the blog how this combination creates a Catch-22: an accused student usually cannot get access to critical evidence without discovery from the university, but the student’s lawsuit will get thrown out before discovery unless it identifies that evidence. Thus, by and large, the courthouse doors have been shut on this type of claim.