In the last few years, several Title IX lawsuits claiming gender discrimination in campus disciplinary proceedings have helped define the legal requirements for a fair and unbiased process. However, these lawsuits also raised the visibility of the arguments made in support of rescinding the 2011 Dear Colleague Letter when male students (“respondents”) who were found responsible for sexual assault claimed that those decisions were the result of “anti-male” bias.

This post examines two recent Title IX cases, decided at different stages of pretrial litigation, that help illustrate how resolving these issues through the courts is a long, arduous, and expensive way to go. Moreover, since the U.S. Department of Education still has not commenced a rulemaking proceeding to establish new Title IX guidance, this post also looks at a “third way” to resolve campus sexual assault cases: using independent regional centers that would provide an alternative dispute resolution to conduct proceedings and criminal trials and would remove an institutional “anti-male” bias argument from the proceedings.

Like many complicated problems, there are no easy answers. But using the correct formula just may be the key to achieving the right result. Below is an explanation of the litigation phase in which these cases were decided.

Pretrial Litigation

When a university is sued, its first line of defense is to file a motion to dismiss, asking the court to throw the case out. The argument goes: even if you accept all of the respondent’s allegations as true, they don’t support a claim under Title IX. Many cases have survived a motion to dismiss, because in this phase of litigation the court doesn’t question the truth of the allegations.

If the lawsuit survives a motion to dismiss, many cases settle to avoid further litigation, which is viewed as a win-win situation: there isn’t a court decision finding liability, which would set a bad precedent for the school, and the student feels vindicated because their lawsuit extracted a settlement.

For the school, however, “winning” still has its price. United Educators found that between 2011 to 2015, the average cost of these cases was $187,000, but in 40 percent of those cases the cost was more than $200,000. Nonetheless, settlements provide an end to litigation when there is considerable uncertainty about the outcome due to complicated fact situations and an area of law that is still developing on reverse discrimination claims under Title IX.

Motion for Summary Judgment Granted

In a recent anti-male bias case, the U.S. District Court for the Northern District of New York denied the university’s motion to dismiss. Surprisingly, the case didn’t settle and instead proceeded to discovery (e.g., interrogatories, document production, and depositions).

Another “dispositive” motion that a university can file is a motion for summary judgment, where the court takes a hard look at whether the evidence produced through the discovery process is sufficient to let the case go to trial. In this case, after completing the discovery process the university filed a motion for summary judgment and, after considering the respondent’s evidence supporting the allegations, the federal district court in New York dismissed the lawsuit.

The evidence supporting the respondent’s anti-male bias claim that was deemed insufficient by the court included:

  • An expert witness who claimed that “serial rapist trope” persuaded the three complainants to report being assaulted by the respondent only after they met each other and decided that he was a serial rapist
  • The respondent’s claim that a “sexual climate forum” and student activism around survivor support created a gender-biased campus climate

In reporting on this case, the Title IX Blog said, “This outcome should hopefully provide some reassurance to campus administrators that they are not caught between a rock and a hard place when it comes to sexual violence” because the court’s decision rejected the argument that “serial rapist trope” and a “sexual climate forum” could establish gender bias. [Doe v. Colgate University (USDC NDNY 2017) No. 5:15-CV-1069]

Motion to Dismiss Denied

In a case that causes concern for universities, the U.S. Court of Appeals for the Sixth Circuit reversed a lower court’s decision and reinstated a male student’s (referred to as “John Doe”) claims that a university’s disciplinary process that found him responsible for sexual misconduct violated Title IX and his constitutional rights to equal protection and due process.

John Doe’s complaint alleged that he was incapacitated by alcohol and does not have a clear recollection of what happened the night that he and a female student (referred to as “Jane Roe”) exchanged text messages and later met up at his dorm room. In her written statement, Jane Doe explained that they started kissing, which “was okay and what I expected and fine.” Jane consented to digital penetration, but said that she did not consent when John asked if he could perform oral sex.

However, Jane’s written statement about this interaction contained inconsistencies: at one point she said that “I never said no. I pushed him away. He rolled over and went to sleep;” but at another point in her statement, she wrote “I said no.” Without explaining how they resolved these inconsistencies to reach its decision, the hearing panel found that John had committed sexual misconduct because he continued sexual activity after Jane withdrew consent. Therefore, he was suspended for eight months, which was reduced on administrative appeal to four months.  

John Doe claims that his suspension violates Title IX and constitutional guarantees of due process and equal protection. The Sixth Circuit Court of Appeal found that the factual allegations set out below were sufficient to let the case move forward on those claims.

Title IX: “Erroneous Outcome” Claim

There are two requirements to state a Title IX claim for “erroneous outcome.” First, there must be serious doubt about the accuracy of the hearing panel’s decision, which the court found was raised by the inconsistencies in Jane’s written statement.

The second requirement is to show that the decision was caused by gender bias, which John alleged was shown by:

  • “Statistical evidence” that:
    • Every male respondent in the Fall 2013 and Spring 2014 semesters was found responsible for alleged sexual misconduct
    • Nearly 90 percent of respondents found responsible for sexual misconduct between 2011 and 2014 “have male first-names”
    • There was a pattern of the university pursuing investigations concerning the conduct of male students but not female students
  • External pressure from the U.S. Department of Education’s Office for Civil Rights
  • A pending lawsuit against the university in which a female student claimed she was assaulted by a male student because he wasn’t expelled from the university for prior offenses

At this stage of the litigation, the court cautioned that “although alternative non-discriminatory explanations for [the university’s] behavior may exist, that possibility does not bar John’s access to discovery.” In other words, since the university has the evidence that will either prove or disprove John’s erroneous outcome claim, the court gave him the chance to discover evidence that backs up his allegations.

Due Process

On John’s procedural due process claim, the court listed the following allegations that provided sufficient support to survive a motion to dismiss:

  • The person serving as the university’s investigator, prosecutor, and a member of the hearing panel in John’s disciplinary proceeding made remarks during the hearing to reduce John’s credibility, including “I’ll bet you do this [i.e., sexually assault women] all the time”
  • John wasn’t given a summary of the evidence against him prior to the hearing or sufficient time to investigate or challenge proposed panel members
  • John had only two days to prepare for the hearing, but Jane was given five days

Equal Protection

After spending the night with John, Jane later told a friend that she was uncomfortable with the interaction she had with John, but she did not report it to school administrators. However, someone told a Resident Advisor about the incident and the RA reported it to her supervisors. Thus, when the school decided to file a formal complaint against John, it was responding to information received from a third party.

John claimed that the university’s decision to pursue disciplinary action against John, but not Jane, violated his right to equal protection of the laws because that decision was based on the fact that he is a man and Jane is a woman. The court agreed that since John was incapacitated and Jane was “mostly sober,” the decision to investigate John, but not investigate Jane for kissing John when he was incapacitated and unable to consent, was “circumstantial evidence of gender discrimination with respect to his equal-protection claim.”

The court noted that Jane’s misconduct did not have to be of the same type and degree as John’s misconduct to present unequal treatment. Instead, the unequal treatment arises from the decision not to investigate after receiving credible information that Jane may have violated the sexual misconduct policy. Therefore, the court concluded that, while “discovery may disprove John’s allegation that the reason he was treated differently than Jane was because of his gender and not because of other, legitimate reasons,” at this stage of the proceedings “we must presume John’s allegations to be true.” [Doe v. Miami University (6th Cir. 2018) No. 1:15-cv-00605]

HEA Reauthorization & The “Third Way”

An alternative to resolving these procedural and evidentiary issues by challenging campus disciplinary decisions in the courts is for the U.S. Congress to step in and legislate a solution. It’s reported that both the U.S. House of Representatives’ version and the U.S. Senate bills to reauthorize the Higher Education Act (HEA) will include provisions that address how colleges and universities handle sexual harassment and violence complaints. A proposal that is analogous to mandatory arbitration in civil actions is finding traction as the U.S. Senate Health, Education, Labor and Pensions (HELP) Committee debates its bill to reauthorize the HEA.

To help inform the Senate bill to reauthorize the HEA, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), chairman and ranking member, respectively, of the Senate HELP Committee, both sought comments or suggestions for the Committee’s consideration. Senator Murray asked “current, former, and future students and their families to share their personal stories about what they think Congress should tackle when it comes to higher education,” and lists “ensuring every student is able to learn in an environment free from discrimination, harassment, and violence” as one of the primary issues that the HEA needs to address.

Finding common ground on how to resolve campus sexual harassment and violence complaints is an issue that may involve a “third way” to resolve these cases. One alternative to college disciplinary proceedings and criminal courts would create independent regional centers for investigation and adjudication of sexual assault complaints that are similar to the children’s advocacy centers that are used to resolve child abuse allegations.

Attorneys Gina Maisto Smith and Leslie Gomez proposed this idea in the Spring 2016 issue of the American Bar Association’s Dispute Resolution Magazine, describing it this way:

Much like child advocacy centers, the regional center could serve as a neutral resource that helps a complainant maintain agency and autonomy in the disclosure and dissemination of information — all without the perception of institutional bias. To ensure continued attention to the needs of individual complainants, the regional centers could be staffed by experienced and sensitive case managers who would coordinate with both educational institutions and law enforcement agencies about the wishes of a complainant and the available facts and circumstances to determine the path of each case. The regional center also would offer helpful separation of support and advocacy services from those involving investigative and adjudication.

Who would pay for it?

Funding for the regional center could come from several sources, including federal grants, state grants, institutions of higher education, and law enforcement.

Smith and Gomez submitted an outline of their proposal to the Commonwealth of Virginia, and in August 2017 the State Council of Higher Education (HE Council) for Virginia issued a report laying out the design for a pilot program for a regional center to investigate sexual and gender-based violence that was conceived by subject-matter experts from higher education, law enforcement, and attorneys. The proposed pilot program is a purely investigative model that would not involve an adjudicative hearing.

However, the Virginia HE Council concluded that implementing a pilot program was not feasible due to the “legal and structural issues that could end up costing significant sums in duplicate roles, equipment and litigation, while failing to improve outcomes for complainants, respondents and institutions of higher education.”

Margaret Spellings, president of the University of North Carolina system and an Education secretary during the George W. Bush administration, is currently trying to sell this “third way” to Senator Lamar Alexander (R-TN), and both survivors’ advocates and Education Secretary Betsy DeVos favor the regional center approach.

Given the financial and reputational costs of litigation, alternatives to campus disciplinary and criminal proceedings, such as the one that is currently being discussed in the Higher Education Act reauthorization debate, are receiving serious consideration. Such a model has the potential to avoid costly litigation and allow colleges and universities to focus their resources on prevention education and support for survivors and a healthy campus community.

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