After a bit of a break I thought it was time to get “back at it” and provide some legal updates.
At the beginning of August the Federal District Court for the Western District of Virginia denied Washington and Lee’s motion to dismiss a Title IX gender discrimination action brought by a male student who was expelled for sexual misconduct. The case is John Doe v. Washington and Lee University. The Order and the Memorandum Opinion was issued by Judge Norman K. Moon.
The facts of the case reveal another situation where two students met at a party, drank alcohol, and subsequently had sexual relations in the male student’s bedroom.
In its opinion the court recounted a series of events that called into question the fairness of the disciplinary proceedings and the impartiality of institutional officials. Among the alleged facts recounted by the court were the following:
- Following the sexual encounter in question, the two students stayed in contact and a month later had sexual intercourse (which Jane Doe said was consensual). They continued to socialize until a few months later when the plaintiff started dating another female student. During the summer of 2014 the female student worked at a women’s clinic that dealt with sexual assault issues.
- Upon return to school the next fall both students applied for the same study abroad program. This caused concern on the part of Jane Doe. At the same time Jane Doe was having regrets about her initial sexual experience with the plaintiff.
- In October Jane Doe attended a presentation by Washington and Lee’s Title IX Officer who made a point that there is an emerging view about sexual assault that regretted sex equals rape and that she was starting to agree with this point of view.
- Jane Doe subsequently filed a disciplinary complaint against the plaintiff. The investigators for the complaint were the Title IX Officer (who had offered the opinion that regretted sex equals rape) and the Associate Dean of Students. During meetings, the Title IX Officer repeatedly told plaintiff that he could not be represented by an attorney during interviews. After initial hesitations plaintiff eventually submitted to an interview.
- Upon completion of the investigation a report was forwarded to a Dean Tammi Simpson. The Dean then offered the plaintiff the opportunity to transfer, which he declined. Plaintiff was then charged with sexual misconduct. The Dean then met with plaintiff again, presented him with a list of potential panel members, and required him to object to them “on the spot.” Plaintiff claimed he was not given background information about the potential panel members and the process was contrary to W&L’s policy on objecting to panel members.
- A disciplinary hearing was held at which witnesses did not appear and the panel relied in the witness statement summaries contained in the investigation report. Plaintiff could not see Jane Doe who was behind a partition. Not all of plaintiff’s questions were asked, they were often paraphrased, and questions were not asked when it was thought that the question would cause Jane Doe emotional distress. Further, the hearing panel did not probe Jane Doe about inconsistencies in her testimony.
- The panel found plaintiff responsible for sexual misconduct and determined he should be expelled. The panel did not provide an explanation for its decision. Plaintiff then appealed the decision, which was denied.
Plaintiff filed suit alleging that W&L’s investigation and finding was the result of pressures being exerted on colleges and universities to find male students responsible for sexual misconduct (citing the Rolling Stone article, OCR’s investigation of higher educational institutions, and OCR’s threat that federal funding could be revoked if a college or university did not address campus sexual violence).
Plaintiff grounded his action on three claims: (1) violations of his constitutional due process rights; (2) gender discrimination under Title IX; and (3) breach of contract.
The court dismissed plaintiff’s due process and breach of contract claims. The due process claim was dismissed on the basis that W&L is a private institution and is not subject to constitutional due process protections. The court dismissed the breach of contract claim ruling that under Virginia law a student handbook does not create contractually enforceable rights.
However the court did not dismiss, and allowed to stand, plaintiff’s Title IX gender discrimination claim. In allowing the Title IX claim to proceed the court chose to use some particularly starting language [while using the Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994) Title IX standard of review].
Quoting the court it found that: “Plaintiff has pleaded sufficient facts to cast doubt on the accuracy of the outcome reached in the proceeding against him. Plaintiff’s allegations, taken as true, suggest that W&L’s disciplinary procedures, at least when it comes to sexual misconduct, amount to ‘a practice of railroading accused students.'”
And the court did not stop there, further stating that: “Given the totality of the circumstances, including the alleged flaws in the proceedings and statements by W&L officials, Plaintiff has plausibly established a causal link between his expulsion and gender bias.”
The court not only allowed the Title IX claim to stand based upon the multiple allegations of procedural flaws and bias on the part of a W&L official, but it also specifically referenced and appeared to give some credence to ” … Plaintiff’s charge that W&L was under pressure from the government to convict male students of sexual assault …” This is rather starting that the court was accepting of this argument by plaintiff and appears to be a first of its kind.
Although this does not represent a final adjudication of plaintiff’s Title IX claim it is noteworthy on a couple of fronts. First, it represents that even a federal court will give scrutiny to a disciplinary decision when there are facts alleging fundamental unfairness in the administration of a university’s disciplinary process. Secondly, and in my opinion, what is most noteworthy is the court’s tolerance for an argument that pressures being exerted are creating an environment whereby male students accused of sexual misconduct may have a difficult time receiving a fair and impartial process. This second aspect is worth watching should there be a trial on the merits.