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As I’ve about on many previous occasions, there are a large number of ongoing lawsuits by students alleging that through unfair campus sexual misconduct proceedings, their institutions violated their constitutional due process rights, breached contracts, and discriminated against them on the basis of sex. In the past eight days alone, there have been four new opinions issued in cases at Brown University, Cornell University, George Mason University, and The Ohio State University, and all but one of those decisions had favorable results for due process and fair procedure on campus. Notably, two of the favorable opinions come from lawsuits against private universities, where student-plaintiffs have, to date, had a particularly difficult time obtaining recourse for unjust campus proceedings.

Doe v. Brown University

In this lawsuit, a student who was suspended from Brown for alleged sexual misconduct contends that the university discriminated against him on the basis of sex in violation of Title IX. He also alleges that the university breached its contract with him by failing to follow its own procedures. In a ruling issued early last week, the federal district court denied most of Brown’s motion to dismiss, allowing a substantial number of the plaintiff’s claims to proceed to the next stage of litigation.

Many accused-student plaintiffs have filed Title IX claims, and have , in large part because of the way courts have interpreted pleading standards (the requirements a plaintiff’s complaint must meet in order to set forth a plausible claim for judicial relief). Although a motion to dismiss is brought at the early stages of litigation—before the parties have engaged in —a number of judges have recently dismissed plaintiffs’ Title IX claims for failing to offer particularized evidence of sex discrimination. Because it is difficult to obtain this kind of specific evidence without discovery, students alleging sex discrimination in campus judicial proceedings have faced an extremely high bar for Title IX claims as a result.

In his decision, Chief Judge William Smith recognized this conundrum and explicitly declined to follow the interpretation of the pleading standards used by other courts ruling in similar cases. Instead, he allowed the plaintiff’s Title IX “erroneous outcome” claim (a claim alleging that, because of gender bias, an innocent student was found responsible) to proceed:

Requiring that a male student conclusively demonstrate, at the pleading stage, with statistical evidence and/or data analysis that female students accused of sexual assault were treated differently, is both practically impossible and inconsistent with the standard used in other discrimination contexts. … Once again, this is a motion to dismiss, not summary judgment; the question is not whether these examples would be admissible evidence or sufficient to get to a jury, but rather whether these facts, taken as true, are enough to state a plausible claim.

Chief Judge Smith also allowed several of the plaintiff’s breach-of-contract claims, based on the allegation that Brown did not follow its own procedures, to move forward. Significantly, the court ruled that while Brown may have been following guidance issued by the federal Department of Education’s Office for Civil Rights by removing the plaintiff from campus before he had been found responsible for anything, Brown’s reliance on OCR did not absolve the institution of the responsibility to follow its own procedures, which guarantee students access to and use of Brown’s facilities.

Prasad v. Cornell University

As in the Brown case, the decision issued last week in Prasad v. Cornell University allows an accused student’s Title IX “erroneous outcome” claim to proceed to the next stage of litigation, while dismissing several other claims (including breach of contract and a Title IX “selective enforcement” claim). This case involves a claim that sexual activity between the plaintiff and an unidentified female student was not consensual because the female student was too drunk to consent. It also involves the use of a “single investigator” system. The plaintiff in this case did not receive a hearing; rather, two Cornell investigators interviewed the parties and witnesses, reviewed evidence, and issued a report recommending that the plaintiff be expelled. The report was reviewed by a panel of three faculty members, who accepted the investigators’ findings and recommendations.  

The federal district court’s decision is noteworthy for two reasons.

First, as in Doe v. Brown, this court recognized that discovery would likely be critical to the plaintiff’s ability to demonstrate sex discrimination, citing a case holding that “in most cases, plaintiffs will be unable to provide reliable statistics before they have access to discovery.”

Second, in ruling that the plaintiff had met his burden of alleging facts that cast doubt on the outcome of the disciplinary proceeding (one element of an “erroneous outcome” claim), the court relied heavily on plaintiff’s allegations about the shortcomings of Cornell’s single-investigator model:

Plaintiff alleges a host of facts demonstrating particular evidentiary weaknesses in the case against him. These include allegations that the investigators failed to question certain witnesses about Doe’s outward signs of intoxication; accepted the victim’s account of her level of intoxication despite numerous statements to the contrary; misconstrued and misquoted witnesses’ statements; used an on-line BAC calculator and Doe’s self-reported weight and alcohol consumption to conclude that Doe was in a state of extreme intoxication; accepted Doe’s statement that she allowed Plaintiff to sleep in her bed because of her family’s “sailboat community values;” drew prejudicial conclusions without sufficient evidentiary support; and cast Plaintiff’s actions in highly inflammatory terms.

Given that the reviewers who ultimately expelled the plaintiff likely took the investigators’ report “at face value,” the court ruled that the plaintiff’s erroneous outcome claim could proceed.

This is significant because the single-investigator model—which FIREhas criticized as a serious threat to due process on campus—has been growing in popularity recently, particularly since the model was cited enthusiastically by the White House Task Force to Protect FIREfrom Sexual Assault back in April 2014. Shortly after the Task Force released its report, attorneys Matt Kaiser and Justin Dillon with such a system in stark terms:

[The Task Force] praises the so-called single-investigator model in which a solitary “trained” investigator would handle the entire investigative and adjudicative process. In other words, one person—presumably paid by the university, whose federal funding may be at stake if the government says the institution has contravened Title IX—will effectively decide innocence or guilt. There is a name for a system like this, and it is Javert.

We are heartened to see a court take seriously the alleged shortcomings of the investigatory model.

The next pair of cases involve constitutional due process claims brought by students at public universities. In one, the judge allowed those claims to proceed, noting the particular stigma of a finding of responsibility for sexual misconduct. In the other, the judge examined a laundry list of outrageously unfair procedures to which the plaintiff was subjected, only to conclude that because due process requirements in university judiciaries are minimal, there was nothing he could do—underscoring the serious need both for legislative reform and for an end to OCR’s unchecked authority over colleges and universities.

Doe v. George Mason University

In this case, the student plaintiff alleges violations of both his due process and free speech rights. This is a factually complex case, involving questions of consent complicated by the fact that the plaintiff and his accuser had been in a BDSM (an acronym for bondage, discipline, dominance, submission, sadism and masochism) relationship where the use of a “safe word” replaced the traditional  “no” to indicate withdrawal of consent. What happened to the plaintiff after he was accused, however, was less complicated: Although he was found “not responsible” for violating the university’s student conduct code by a hearing panel, he was found responsible on appeal—and expelled—“for events about which plaintiff had no notice were in issue.” Specifically, while the hearing itself had been about a particular set of events occurring on October 27, 2013, the administrator who decided the plaintiff’s appeal based his finding of responsibility on other sexual encounters between the plaintiff and his accuser.

Generally speaking, students in public university disciplinary proceedings are , at a minimum, to notice and an opportunity to be heard. In this case, the federal district court ruled that the notice given to the plaintiff was constitutionally inadequate because “plaintiff was not fairly on notice that events other than those of October 27, 2013, were at issue in his disciplinary hearing.” This was crucial to a fair procedure, the court held, because “the scope and content of the defense plaintiff mounted to the charges against him may have been different had plaintiff had better notice.”

The court also noted the particular seriousness of a finding of responsibility for sexual misconduct, even within a university judicial system, noting that such a charge “plainly calls into question plaintiff’s ‘good name, reputation, honor, or integrity’”—things in which a plaintiff has a protected interest.

In addition to being found responsible for physical sexual misconduct, the student was found responsible for violating a speech code prohibiting “communication that may cause injury, distress, or emotional or physical discomfort.” (Happily, this code has since been revised; GMU now receives a green light rating from ��֭����.)

The court’s opinion was also a win for free speech on campus. While a full analysis of the free speech aspects of the case is beyond the scope of this post, the opinion limited the university’s ability to rely on to regulate college students’ speech, holding that “Tinker [v. Des Moines Independent Community School District (1969)] does not justify the ad hoc imposition of punishment on an adult university student for speech that was privately communicated simply because the speaking party intended to cause distress and the receiving party might become distressed.”

Doe v. The Ohio State University

The last case I will discuss today serves as a reminder that while courts may be increasingly willing to entertain students’ claims that they were mistreated in campus tribunals, the campus due process crisis is unlikely to be resolved in the courts alone.

In this case, a medical student at The Ohio State University (Ohio State) filed a lawsuit against the university and asked the court to issue a preliminary injunction reinstating him at the university until his claims can be resolved. A federal magistrate judge recommended last week that the plaintiff’s motion for a preliminary injunction be denied. The case involves a female student who brought a claim of sexual misconduct against the plaintiff two days after learning that she was facing possible dismissal from medical school due to poor academic performance. She subsequently cited the impact of the alleged sexual assault in her request not to be dismissed from school, which was granted.

Although the plaintiff in this case did receive a hearing, he alleged that the hearing panel was trained using materials that would lead to an unfair bias against him. Among other things, the plaintiff cited training materials noting that,

“[a v]ictim centered approach can lead to safer campus communities”; “[s]ex offenders are overwhelmingly white males”; “[i]n a large study of college men, 8.8% admitted rape or attempted rape”; “[s]ex offenders are experts in rationalizing their behavior”; and “22-57% of college men report perpetrating a form of sexually aggressive behavior.”

The plaintiff also alleged that he was unfairly prejudiced by the hearing panel’s refusal to allow his expert witness to testify, and that the initial investigator failed to complete a thorough investigation before deciding to proceed with charges against the plaintiff.

For much of the opinion, the judge appears to agree that the process was unfair. Among other things, he notes:

• “The University’s failure to provide Mr. Doe with records in its possession which would have assisted him in attacking Ms. Roe’s credibility at the hearing can be conceptualized, at least in part, as a failure to provide John Doe with the opportunity to conduct a meaningful cross-examination of Jane Roe at the hearing.”
• “There is undeniably some evidence in this case from which it could be inferred that the training materials used to train these panel members are biased against males who are accused of sexual misconduct.”

Despite this, however, the judge ruled that the plaintiff’s due process claim was unlikely to succeed on the merits, holding: “When a university provides a student facing disciplinary proceedings with a full hearing, advance notice of the charges and the evidence, and the opportunity to call witnesses and to confront the accuser, it is extremely difficult for that student to prove a due process violation.” While it is certainly true that a process like Ohio State’s, which offers students a hearing, is preferable to a single-investigator system in which there is no hearing at all, the reality is that in the current climate, the mere fact of a hearing in no way guarantees that a student will be treated fairly. This case is a reality check about the uphill battles students face when bringing such claims.

The fact that this week alone brought four significant opinions on the topic of campus sexual assault proceedings makes clear that this is a rapidly developing and shifting area of the law. FIREwill continue to keep you updated on developments as they happen.