Title IX disciplinary hearings can result in severe consequences for a student accused of sexual misconduct. In the past few years, accused students have been challenging Title IX procedures. In a recent case, a student of a private university in Kentucky (the University) sought injunctive relief to delay a disciplinary proceeding.
According to the court’s opinion, John Doe and Jane Doe were involved in an incident in John Doe’s dorm room, the facts of which are disputed. A Title IX investigation was ultimately opened.
John Doe received notice of the investigation and met with the Title IX Coordinator. He was placed on interim social probation and interim suspension from some campus locations. He was not allowed to go back to the residence halls and moved into a university apartment complex. According to the University, John Doe’s involvement as the respondent in two sexual misconduct investigations influenced these sanctions.
The investigators interviewed both parties, other witnesses and examined evidence. According to the University, John Doe initially described the encounter as consensual.
John Doe hired an attorney. The University scheduled a meeting with him and his attorney and provided copies of its communications with him and his previous statements. According to the court’s opinion, this follow-up meeting was when John Doe first stated that Jane Doe’s actions were unwanted.
The Title IX Coordinator gave John Doe’s attorney a copy of the investigative report and access to the evidence.
During a pre-hearing conference, John Doe’s attorney argued John Doe had made a Title IX complaint against Jane Doe in his interviews. John Doe then filed a formal complaint and consented to a separate investigation. He alleged he was the victim of unwanted sexual assault.
After the pre-hearing conference, the attorney requested additional evidence, challenged the hearing process, and argued the University had discriminated against John Doe. The hearing was rescheduled.
When the Title IX Coordinator contacted John Doe to set up a meeting about his complaint, he referred to his statements. Neither John Doe nor his attorneys responded to her follow up requests. The investigators ultimately found insufficient evidence to send his complaint to the hearing board.
Under the University’s policy, the respondent is to receive notice of the charges, a prehearing conference, and a hearing. The parties are allowed to call witnesses, present evidence, and challenge evidence. The University modified its policy to include the proposed regulations on cross-examination in response to John Doe’s objection to how the policy handled cross-examination. The hearing was scheduled for April 15, 2020.
John Doe filed suit on April 7, 2020, alleging the University discriminated against him and failed to comply with its Title IX policies. He claimed he filed an informal complaint and the University failed to properly investigate or tell him he had the right to pursue a Title IX claim. He alleged the University dismissed his formal complaint without meaningful investigation.
John Doe petitioned for an injunction to postpone the disciplinary hearing until he could determined if the University violated its policies and discriminated against him. He also argued the hearing should be postponed due to the COVID-19 pandemic.
John Doe’s attorney argued his rights would be violated due to the use of video conferencing, lack of full cross-examination rights under the policy, and the lack of training of the hearing panel.
The University argued it had changed the cross-examination policy based on the proposed regulations. Under the policy, John Doe could submit questions to the hearing panel in advance and during the hearing, and his attorney could ask questions.
The University filed a supplemental memorandum to address the court’s concerns regarding the privacy of the video conference platform to be used for the disciplinary hearing. Based on that information, the court found the hearing satisfied the University’s own policies and provided sufficient security and privacy to the parties.
In considering whether to grant a preliminary injunction, courts in the 6th Circuit consider whether there is a strong likelihood the movant will succeed on the merit, whether he would suffer irreparable injury absent the injunction, whether the preliminary injunction would substantially harm others, and whether issuing the injunction would serve the public interest.
The plaintiff here had not alleged a specific theory of discrimination, but the court inferred a claim of erroneous outcome and selective enforcement from his reply. For an erroneous outcome claim in the 6th Circuit, the plaintiff must allege facts that cast “articulable doubt” on the outcome and causation between the outcome and gender bias. The court found John Doe had not identified any evidence showing causation between gender bias and the dismissal of his complaint. He did not provide statements from the University or show a pattern of decision-making showing gender bias or discrimination.
The court also acknowledged a potential claim for selective enforcement, which would require a showing a female student in similar circumstances was treated more favorably due to her gender. John Doe alleged the University informed Jane Doe of her right to file a complaint and conducted a thorough investigation of her complaint. He alleged that when he made a similar complaint, he was not advised of the procedures and the complaint was dismissed without investigation.
The court rejected this argument. The court found John Doe was advised of his rights in his meetings with the Title IX coordinator and in the Sexual Misconduct Handbook he was given. He had been accused of sexual misconduct before, so this was not a new process for him. Additionally, the University requires all students to complete its sexual misconduct training. The court also noted he had not initially stated Jane Doe’s conduct was non-consensual and he failed to cooperate with this investigation.
John Doe also claimed he was removed from the dorms immediately, but Jane Doe was not removed from campus housing. The court found, however, that the decision to remove him could have been partly based on the fact there were two sexual misconduct allegations against him. The court found he had not shown a likelihood of success in a selective enforcement claim.
The court rejected John Doe’s claim that the University’s failure to follow its own policies violated his due process rights. The court found he failed to show how the private University’s policy created a property interest stemming from state law.
The court also rejected John Doe’s argument that the University would breach its policy for a live hearing by using video conferencing, because the policy said the hearing would be “live and recorded” but not that it would be in person.
Although the policy said the parties’ advisors are not allowed to participate in the hearing, the University stated John Doe’s attorney would be allowed to cross-examine witnesses if licensed in Kentucky.
The court rejected John Doe’s claim his rights would be violated because the investigators and panel were untrained. There was evidence they had been trained, and John Doe provided no evidence of an error resulting from a lack of training.
The court did not find a likelihood John Doe would succeed on the merits of his emotional distress claim under Kentucky law.
With limited discussion, the court found John Doe had not shown that he was likely to suffer irreparable injury if the hearing occurred. In assessing harm to others, the court found both Jane Doe and the University would be harmed by an indefinite postponement of the hearing. The court also found there is a public interest in enforcing Title IX requirements in a timely manner.
The court found all of the factors weighed against granting an injunction and denied John Doe’s motion.
Although John Doe was unsuccessful in getting an injunction in this case, a different case with different facts may have different results. If you are facing a complaint, you need an experienced Washington Title IX defense attorney on your side throughout the process. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule an appointment.