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.
Whereas the lower court, like many others, would have required the plaintiff to substantiate his claim of gender discrimination at the beginning of the case, the Second Circuit took a different approach. Since the case law under Title IX is relatively limited, the Second Circuit looked to the analogous context of Title VII, which prohibits discrimination in the employment context. Under Title VII, the courts have recognized the difficulty of proving a discrimination case against an employer who has access to most of the relevant documents and information and who is not likely to openly admit or create direct evidence of illegal discrimination. Accordingly, over 30 years ago in McDonnell Douglas v. Green, the Supreme Court established a burden-shifting framework whereby a plaintiff only initially needs to establish a prima facie case of discrimination by showing 1) membership in a protected class such as gender, 2) qualification for employment, 3) an adverse employment action like being fired, and 4) minimal evidence of discriminatory motivation (such as the job remaining open for individuals with the plaintiff’s qualifications). Then the employer must come back with a legitimate, non-discriminatory reason for its actions. If it does, the employee can prove the case by demonstrating that the employer’s proffered reason is a pretext for discrimination.
The Second Circuit not only adopted this general framework for Title IX cases, but held that it applies at the initial pleading/motion to dismiss stage. Accordingly, a plaintiff who alleges “specific facts that support a minimal plausible inference of [gender] discrimination” (emphasis added) benefits from a “temporary presumption” that the school’s actions were motivated by gender bias. The court held that this low standard was met by allegations that Columbia skewed its disciplinary process against Doe (a male varsity athlete) to refute public allegations that it was ignoring female students’ complaints of sexual assault and harassment by male athletes and other students. In response to these criticisms, the University President had called a campus-wide open meeting with the Dean, which demonstrated that top officials were aware of, and responding to, the critiques. Whereas the lower court found it more plausible that Columbia had beefed up its policies in order to avoid negative publicity or lawsuits by alleged victims of sexual misconduct, the Second Circuit pointed out that such a motivation, even if true, might not be so pure: “A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination….” As long as a motivation of gender bias is “plausible” from the allegations in the complaint, even if a judge believes it is not “the most plausible” inference, the lawsuit must not be dismissed.
This decision is an important milestone in bringing some balance to the enforcement of Title IX. Students who allege that they are victims of sexual harassment have long been able to sue their schools under Title IX if the school displayed “deliberate indifference” to their plight. But students penalized based on allegations of sexual harassment have rarely found any relief under Title IX for unfair or biased proceedings. As I have previously pointed out, such students frequently lacked direct evidence of gender bias before a lawsuit, but their lawsuit would be thrown out without that evidence. The Second Circuit’s decision goes a long way to avoid this Catch-22 by requiring only “minimal” evidence giving rise to a “plausible inference” of gender bias to get past the pleading stage. Once that hurdle is passed, a plaintiff can use the discovery tools of the courts to gain access to university documents, resources, and evidence. And ultimately, the new Title IX regime and universities’ tribunals may be put on trial in a real court.