Title IX is a federal law that bans gender discrimination in educational programs that receive federal funds (e.g., almost all college and universities). The Department of Education has interpreted Title IX to require schools to take swift and decisive action in response to complaints of sexual harassment or assault by or against students. In theory, Title IX requires schools to provide a “prompt and equitable” (that is, fair) process for deciding these cases, but in practice these processes are often heavily stacked against the accused student. Although students who are accused of sexual harassment or assault have tried to use Title IX to enforce their rights to a fair disciplinary process, courts have generally not been receptive and have often dismissed them at early stages. I will take a look at a recent decision on one such case and explore why that is.
In Doe v. Columbia University, a male Columbia student calling himself John Doe alleged that he had been wrongly suspended for sexual assault, in violation of Title IX and other laws. According to his complaint (which, at the earliest stage of a lawsuit, is essentially accepted as true), he ran into a female friend (Jane Doe) while studying one night. After taking a walk for an hour, they decided to have sex, and because their roommates were home (and Jane had dated John’s roommate previously), they decided to do so in the dorm bathroom. John waited in the bathroom while Jane got a condom from her room, they had sex, and John went back to his room.
Months later, Jane filed a complaint with Columbia alleging non-consensual sex. The investigator allegedly failed to inform John of his rights or the disciplinary process, ignored John’s side of the story, and did not follow up with key witnesses to support his explanation of what happened. A hearing was held, but John did not have assistance from a lawyer or a student advocate, and, John alleged, the hearing panel declined to ask Jane important questions implicating her credibility and refused to hear from the witnesses the investigator had overlooked. Having heard a biased selection of evidence, the panel found John responsible for sexual assault, and he was effectively suspended for 3 semesters. John’s appeal was rejected. Notably, Jane also appealed, seeking to have the sanction reduced, but her appeal was also dismissed.
Soon thereafter, John brought a lawsuit in federal court in Manhattan asserting, among other things, that Columbia had not provided the fair process to which he was entitled under Title IX. A few days ago, the court dismissed the lawsuit, holding that, even accepting his allegations at face value, he could not show a Title IX violation. The basic reason in legal terms, as Alison Frankel astutely points out on her blog for Westlaw, is that Title IX is generally seen as permitting only “disparate treatment” claims, not “disparate impact” claims. A disparate treatment claim essentially asserts that someone has a policy or practice that involves direct discrimination against a protected class, such as a racial or religious minority. A disparate impact claim, on the other hand, asserts that a policy, even though it is neutral on its face, in practice has an unequal impact on the protected group. A disparate treatment claim in the campus sexual assault context might be that men and women are held to different standards if they are accused of misconduct; a disparate impact claim could be that, though the same standards apply to men and women, men are disproportionately suspended or expelled for sexual misconduct.
Let’s unpack that distinction as it applies to the Columbia case. There are a few recognized types of Title IX claims; most pertinent here is the “erroneous outcome” theory. As first articulated by the Second Circuit Court of Appeals in Yusuf v. Vassar College in 1994, to succeed on this theory, a student must show that: 1) he has been disciplined by his school for misconduct of which he was innocent; 2) there is reason to doubt the fairness or accuracy of the disciplinary process (such as procedural irregularities or strong evidence supporting the defense); and 3) the school’s unfair treatment was because of gender bias. Of these three elements, the rarest, and the one found lacking in the Columbia case, is the third. The courts demand either explicit statements by responsible officials evidencing bias or a pattern of decision-making that implicitly demonstrates bias. The former is difficult to uncover because officials, even if they are biased, are seldom foolish enough to say so out loud. And the latter is hard to discern because these matters are confidential, and without information on how a university has handled other cases, it is nearly impossible to establish a pattern of treating one gender differently than the other.
In the employment context under Title VII, courts often look at comparator evidence (how someone of the opposite gender was treated, for instance) for indirect proof of bias. But because disciplinary proceedings for other students are confidential, a would-be Title IX litigant typically lacks access to comparator evidence before bringing suit. Students are thus caught in a Catch-22: they cannot find out what happened to other students except through discovery in litigation, but Title IX claims may well be dismissed before discovery unless they know what happened to other students.
John Doe had plenty of allegations of a slipshod investigation and an unfair process, but he could not point to a “smoking gun” to establish that Columbia had proceeded in this manner because he was a man. To be sure, he argued that Columbia had been under pressure for mishandling sexual misconduct cases against male athletes, and therefore decided to use him as a scapegoat. At least one court has accepted this reasoning, but this court found it unpersuasive.
The clear recent trend has been towards dismissing Title IX claims that do not present a fairly concrete factual basis to believe that gender discrimination is involved. However, just because that “smoking gun” has not materialized does not mean there can be no recourse. Arbitrary or negligent decisions by schools may violate other laws, such as state contract or tort law. Anyone contemplating a lawsuit involving a sexual misconduct case should consult a knowledgeable attorney to assess all relevant legal theories. Title IX is in the headlines, but may not be the most appropriate vehicle for every case.
Click here to read about Zalkind Duncan & Bernstein’s experience with university-related matters in sexual assault and sexual harassment.