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.
However, a couple of recent cases have cracked the door open just a bit. It is worth noting that very few, if any, campus sexual misconduct cases have made it to the federal appeals courts since the Department of Education started stepping up requirements with its Dear Colleague Letter in 2011. The lower courts, though they have tended to follow the same general approaches, do not create binding, authoritative precedent, and are free to disagree with one another. A federal court in Maryland denied a motion to dismiss by Salisbury University in August, largely on the basis of allegations “on information and belief” that the university possessed documents showing that it intentionally favored female accusers over male students accused of misconduct in order to demonstrate to the Department of Education that it was taking the issue of campus sexual assault seriously. Based on this decision, lawyers for accused students would do well to include such language in their pleadings, although I expect that many judges would still find these vague allegations too speculative to survive a motion to dismiss.
But the more specific an accused student can be about biased statements and actions taken by a university or its officials, the greater the chance that a Title IX claim will survive. A federal judge in Rhode Island recently denied Brown University’s motion to dismiss, finding that the plaintiff had laid out enough issues and prior incidents to meet the supposedly low bar of a “plausible claim.” Unlike many other courts, this one specifically grappled with the Catch-22 problem of the university setting, where the school’s past actions are shrouded in confidentiality. It refused to require the plaintiff to come up with a “smoking gun” or statistical evidence off the bat, and accepted allegations that current and former Brown community members had described the school as treating male students as “guilty, until proven innocent.” Significantly, the plaintiff was able to point to multiple prior accounts of sexual misconduct investigations by Brown that have spilled into the public eye, which raised questions about Brown’s good faith in such matters. The court held that, combined with allegations of “numerous and significant procedural flaws” in Brown’s treatment of the plaintiff, these factors taken together were enough to allow the claim to proceed to discovery.
If more judges follow the lead of the Brown court, it could become more feasible to bring a Title IX suit over a biased disciplinary process. The Brown ruling shows that the Title IX Catch-22 is not inevitable. The court in Yusuf held more than 20 years ago that allegations that a college invariably found male students responsible regardless of the evidence, “if based on race in employment decisions, would more than suffice in a Title VII case.” Yet several lower courts have rejected those allegations as speculative in the Title IX context. If courts applied the same pleading standards that they do in other kinds of discrimination cases, more of these cases would survive motions to dismiss. Allowing these claims to proceed, at least to the discovery stage, could bring some level of balance to Title IX, permitting the law to work to prevent unfair and biased treatment of all students, both complainants and accused.