Suspension or expulsion after a finding of sexual misconduct in a Title IX investigation can permanently affect a person’s professional opportunities and future. In some cases, students have been successful in enjoining the school from enforcing such disciplinary action pending a lawsuit, but a New Hampshire federal court recently denied a plaintiff’s motion for a preliminary injunction.
According to the court order, the plaintiff and his roommate were fourth-year medical students when the incident occurred. On July 11, 2020, they both fell asleep on the sofa watching a movie after eating and drinking together. According to both men, the plaintiff performed oral sex on the roommate, but the events leading up to that act were in dispute. The roommate alleged that he woke up with his underwear down and the plaintiff caressing him. The plaintiff alleged that he was “blacked out” and the roommate woke him up with his genitals exposed. Neither party filed a complaint immediately after the incident.
Soon after the incident, the plaintiff decided to take an unrelated leave of absence from school.
In April of 2021, the roommate asked the Title IX Coordinator if the plaintiff was coming back to school. The coordinator told him the plaintiff was coming back in the spring of 2022, though the plaintiff claimed he had told the school he would be back in the fall. After the roommate learned the plaintiff would be back while he was still enrolled, he filed a Title IX complaint.
That June, the plaintiff filed a Title IX complaint alleging the roommate sexually assaulted him by initiating sexual activity with him while he was incapacitated.
In the final report, the investigator found there was sufficient evidence supporting the roommate’s claim the plaintiff had sexually assaulted him but not sufficient evidence to support the plaintiff’s allegation against the roommate. The hearing panel upheld those findings and decided to expel the plaintiff. The Dean of the Medical School upheld the panel’s decision on appeal. The plaintiff then filed suit and moved for a preliminary injunction.
To get a preliminary injunction, a plaintiff generally must show a likelihood of succeeding on the merits, a likelihood of irreparable harm, that the balance of hardships weigh in favor of the plaintiff, and that the injunction is in the public interest.
The court noted there is a split on whether a gap in a resume arising from an expulsion is sufficient to show that irreparable harm is likely. Some courts have found such a gap is an irreparable harm even if the student is allowed to go back to school. Additionally, some courts have held that the loss of educational or professional opportunities may also be irreparable harm.
Other courts, however, have held that a gap on a resume can be compensated.
The court noted that the plaintiff’s case was distinguishable from other cases in two ways. First, the plaintiff already had a gap on his resume due to his voluntary leave of absence. Additionally, the leave of absence also meant he would not be graduating with the rest of his class, so that could not be the basis for a claim of irreparable harm.
The court also pointed to the plaintiff’s “lack of urgency in litigating” the preliminary injunction motion. The Dean upheld the expulsion in November 2021. The plaintiff filed his complaint and motion in January 2022. He indicated he did not intend to go back to school before the fall. When the hearing was scheduled for late March, the university’s attorney indicated the plaintiff would not suffer any prejudice waiting nearing two months for the hearing because he was not planning to return to school until the fall. At a conference the day before the hearing, the parties informed the court that the fall semester would begin in September. At the hearing, however, the parties corrected that statement and informed the court that the fall semester actually began on April 11 for fourth-year medical students.
The court stated if the plaintiff were truly in danger of irreparable harm if he was not allowed to return for the start of the fall semester, he would not have agreed to schedule the hearing so far out. The court also noted that the plaintiff should have been aware of the date the semester started if he were really at risk of irreparable harm.
The court found the plaintiff failed to show he was likely to suffer irreparable harm and denied the preliminary injunction.
This case shows the importance of acting quickly in pursuing a preliminary injunction. Failure to do so may be considered by the court in evaluating the likelihood of irreparable harm. If you have been accused of sexual misconduct, having a skilled Washington Title IX defense lawyer on your side as soon as you learn of the investigation will position you to take prompt action if necessary. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.