Recently, the United States District Court for the Southern District of Ohio issued two rulings dismissing suits by male students held responsible for sexual misconduct on campus. These cases are emblematic of others proliferating nationally, where plaintiffs not merely plead claims under Title IX of the Education Amendments of 1972 (Title IX) but also pursue diverse federal and state causes of action.
The lawsuit against the private university
In Pierre v. Univ. of Dayton, Case No. 15-cv-362 (S.D. Ohio 3/27/17), the plaintiff pled Ohio state law claims for breach of contract and negligence, as well as claims under federal disability law and Title IX. Accepting the truth of plaintiff’s allegations (as the court was required to do), Judge Thomas Rose granted the university’s motion to dismiss the comprehensive complaint because none of the causes of action was plausibly alleged.
The plaintiff asserted that the University breached “a bevy of purported contractual obligations,” and deprived him of a fundamentally fair and reliable disciplinary process. Observing that a respondent in a university disciplinary process is not entitled to the same level of due process as a defendant in a criminal proceeding, the court found fundamental fairness was achieved because the plaintiff was able to offer evidence and explain his version of events, and was afforded the chance to submit questions and have a lawyer present at the hearing as an advisor. A university is not required to give a student pre-hearing discovery or the right to cross-examine the complainant or witnesses. According to the court, the fundamental fairness analysis focuses on the university’s adherence to its disciplinary procedures and whether the proceedings fell within the range of a student’s reasonable expectations from reading the rules.
In rejecting plaintiff’s claim that the University acted arbitrarily in interpreting its contract with him, the court relied upon “well-established” precedent that “school disciplinary committees are entitled to a presumption of impartiality, absent an allegation of actual bias” and that disciplinary decisions should not be set aside even if a court may subjectively view the result “as lacking in wisdom or compassion.” The court dismissed plaintiff’s negligence claim, observing it was merely a repackaging of his breach of contract claim and essentially a disallowed effort to sue “for educational malpractice.”
Regarding plaintiff’s federal law claims, the court’s analysis of the disability discrimination claim is of particular interest. Increasingly, cases address whether and the extent to which a reported disability must be accommodated during a disciplinary process. The plaintiff’s disability was his difficulty to articulate and express himself verbally while under stress and pressure. He sued for failure to accommodate under the Americans with Disabilities Act and Rehabilitation Act of 1973. The timing of plaintiff’s accommodation request was dispositive to the court’s ruling because he did not raise specifically his need for any accommodation until nearly four months after he was first notified of the disciplinary process and during its appellate stage. The court found the fact that one university department knew about his disability did not trigger an obligation on every department to offer him accommodations in their dealings with him. Other departments might not have known to ask him about his disability because the University’s policy protected the confidentiality of his disability and accommodations. Even so, the court found that the disciplinary process properly accommodated the plaintiff as he was allowed to have legal counsel accompany him throughout the process, able to submit a written statement during the investigation, permitted to distribute and read a ten-page written statement at the hearing and given the opportunity to submit written questions at the hearing drafted with the assistance of counsel (which he declined to do).
Finally, the court rejected the plaintiff’s Title IX claims under “erroneous outcome” and “deliberate indifference” theories. A plausible erroneous outcome claim requires the plaintiff to sufficiently allege the conduct of the university in his disciplinary proceedings was motivated by a sexual bias. Plaintiff failed to plead any direct or circumstantial evidence that his gender played any role in the disciplinary process or result. The court said a causal connection might be shown by statements by members of the disciplinary tribunal, statements by pertinent university officials or patterns of decision-making that tend to show the influence of gender. Deliberate indifference in a Title IX context arises when an institution with actual notice of sexual assault or harassment fails to institute proper corrective measures for a complainant. Here, plaintiff had not alleged he was the victim of assault or was otherwise harassed. Accordingly, these claims failed.
The lawsuit against the public university
In John Doe v. Miami Univ., Case No.15-cv-605 (S.D. Ohio 3/28/17), Judge Michael Barrett addressed a broadly pled complaint against a public university and several individual defendants. As in the Pierre case addressed above, the court accepted the truth of the complaint’s factual allegations and found the plaintiff failed to plead any plausible causes of action.
Doe’s Title IX claims alleged that the University acted with deliberate indifference and reached an erroneous outcome in contravention of its Title IX policies. Doe’s claim of deliberate indifference in its treatment of him was based on allegations Jane Doe should have been disciplined for initiating physical contact with him while he was incapacitated by alcohol. As in Pierre, the court noted a Title IX deliberate indifference claim requires allegations the university was on actual notice of sexual harassment against the plaintiff and failed in its response. Here, Doe had not filed a complaint providing the University notice. Even if the court assumed the university acquired actual notice of the alleged misconduct by Jane Doe from the disciplinary hearing, the court held plaintiff had “not adequately alleged that the sexual harassment was so severe, pervasive and objectively offensive that it could be said to deprive [him] of access to the educational opportunities or benefits provided by the school.” Allegations about a single occasion where Jane Doe initiated physical contact while plaintiff was incapacitated did not support a finding the University was motivated by gender or that such allegations constituted gender or sexual harassment sufficient for Doe’s Title IX deliberate indifference claim.
While Doe alleged facts casting doubt on the accuracy of the outcome of the University’s administrative hearing, the court also rejected his erroneous outcome claim. Doe alleged the university engaged in patterns of decision-making tending to show anti-male gender-bias. He cited disciplinary proceedings against approximately a dozen male students, a sample size the court found insufficient to draw any reasonable inferences of gender-bias. The fact that, in virtually all cases of sexual misconduct on the campus, the accused student was male and the accusing student was female also failed to show a gender bias on behalf of the University. Finally, the University’s alleged mandate that individuals evaluating sexual misconduct should always “believe” an accusing student showed at most a bias in favor of alleged victims and against alleged perpetrators, which was not the same as bias against male students. The court held that unlike Title VII employment claims, Title IX requires a showing of direct intentional discrimination, as opposed to an alleged disparate impact on men.
Under 42 U.S.C. § 1983, Doe sued several university administrators and faculty members, alleging violations of the Fourteenth Amendment’s protections of substantive and procedural due process and equal protection. The individual defendants asserted the Eleventh Amendment’s immunity protections barred these claims for past violations of federal law against them in their official capacities. The court held the Eleventh Amendment protected both the university as “an arm of the state” and the individual defendants in their official capacities against monetary damage claims. However, the immunity did not extend to claims against the individual defendants for prospective injunctive relief. The court stated: (1) school officials may be sued to enjoin them from reporting university disciplinary actions and to compel the removal of a negative notation from a student’s disciplinary record; and (2) a plaintiff student may seek a declaratory judgment that the school official previously violated his constitutional rights when it is ancillary to a prospective injunction designed to remedy a continuing violation of federal law.
In rejecting Doe’s substantive due process claims, the court held that a university’s decision to suspend a student will be upheld when it is rationally related to a proper public purpose. Because of a university’s obligation to provide safe campuses, its alleged motive to show the U.S. Department of Education that it is willing to “crackdown” on sexual misconduct is not an improper purpose.
Addressing Doe’s procedural due process claim, the court recognized he held a property interest implicated by the University’s suspension of him, but held the University’s alleged failure to follow the procedural guidelines in its discipline process did not amount to a constitutional due process violation. In the school-disciplinary context, an accused student must at least receive the following pre-expulsion: (1) notice of the charges, (2) an explanation of the evidence against him, and (3) an opportunity to present his side of the story before an unbiased decision-maker. The court reiterated the principle that a school disciplinary hearing need not assume the formality of a criminal trial. “Instead, the focus should be on whether the student had an opportunity to respond, explain and defend.” Giving the university officials involved in Doe’s case “a presumption of honesty and impartiality absent a showing of actual bias,” the court rejected Doe’s claim his decision-makers were biased because they allegedly conducted academic research focusing on feminist and female perspectives. That one of the officials served as investigator, prosecutor and judge of the charges against Doe also did not constitute actual bias, as a school administrator may play more than one role in a university disciplinary process and absolute neutrality was not required.
Doe’s equal protection claim was premised on the female student’s receipt of: (1) amnesty for her underaged drinking, and (2) an extension in submitting her written statement to the disciplinary committee. The court held Doe failed to show the University’s amnesty policy created any impermissible class or was based upon discriminatory intent, a fatal flaw in his equal protection claim. Similarly, Doe failed to allege that the extension was based upon discriminatory intent or that he ever asked for and was denied a similar extension.
The big picture
While these two rulings were favorable to universities and dismissed the claims entirely at the pleading stage, the results on motions to dismiss nationally have been mixed. Several federal district courts have declined to dismiss similarly pled complaints, often noting that a plaintiff should be allowed to develop the claims through discovery and receive disciplinary materials that are substantially in the hands of the defending institutions. As these types of cases move past motions to dismiss, we expect to see in the ensuing months more rulings on motions for summary judgment, which will give more precise clarity to the level of required proof and types of disputed factual questions that will allow a plaintiff to reach a trial.