Given the attention and press the issue of sexual misconduct on campus has received in recent years, schools have moved quickly to develop and implement investigation and adjudication procedures to address the issue and to comply with evolving standards and obligations for Title IX compliance. However, in the wake of the movement towards stricter action in response to sexual misconduct on campus a new trend is emerging, one where accused male students claim their schools incorrectly disciplined them and did so based solely on the fact that they were male, violating Title IX. The allegation is that schools are automatically concluding that males are guilty of the misconduct for which they are accused, because they are male, and that the schools are simply tailoring their investigations to lead to a guilty finding.

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In two cases, John Doe v. Brown University in Rhode Island federal court and Vito Prasad v. Cornell University in a New York federal court, the plaintiffs are male students who were disciplined by their respective colleges after allegations of sexual assault were made against them by a female classmate. Both plaintiffs claim that the schools did not follow established investigation protocols and instead presumed guilt based on the fact that they were male. The plaintiffs argue that this presumption constitutes sex discrimination and violates Title IX. In both cases, there are overwhelming and damning allegations against the schools’ investigation processes, enough to suggest that, if true, perhaps the discipline meted out to the plaintiffs was erroneous.

In both cases, the schools filed motions to dismiss, which were denied in part and granted in part. In both, claims of violation of Title IX under the “erroneous outcome” theory survived the motions to dismiss. A successful “erroneous outcome” claim is one where the court finds that the plaintiff was innocent and that gender bias was a motivating factor in the incorrect determination made by the school. To be clear, the courts only found that the plaintiffs had plead sufficient facts to support an “erroneous outcome” claim. The plaintiffs now have to prove, through evidence, that they are in fact innocent of sexual misconduct and that they were wrongfully found guilty because they are male.

Client Tip: In order to comply with Title IX, colleges and universities must ensure that procedures for investigation and adjudication of sexual misconduct cases are designed and implemented in a manner that will ensure a fair and equitable process for all parties.