A federal court has dismissed a female plaintiff’s claims against a university in an unusual Title IX case. According to the court’s opinion, a male student, “John Doe,” first alleged the plaintiff, “Jane Doe,” committed sexual assault against him. The plaintiff subsequently alleged he had committed sexual assault against her. Following an investigation and hearing addressing both complaints, the university found the plaintiff sexually assaulted John Doe by having sexual intercourse with him when he was too intoxicated to consent. The university also found that John Doe committed sexual assault against the plaintiff when he choked her during the encounter and that he committed “Sexual Verbal Abuse.” Both students were suspended for a semester.
Jane Doe filed suit against the university, alleging in relevant part that the university’s disciplinary process violated Title IX and its decision was motivated by gender bias. She argued procedural flaws and evidentiary weaknesses led to an erroneous result. She further alleged that these procedural issues were motivated by her gender. The plaintiff also alleged several other claims, including breach of contract and negligence.
The court noted that, as a private university, the defendant did not have the same due process requirements as a public institution.
When a plaintiff alleges discrimination based on erroneous outcome, she must allege facts that raise an “articulable doubt” on the outcome’s accuracy as well “circumstances suggesting that gender bias was a motivating factor” in that outcome. Articulable doubt can be shown through procedural flaws, “inconsistencies or errors in the findings,” or insufficiency or unreliability of the evidence. To show gender bias, the plaintiff must show that she was wrongfully found guilty at least partly due to her gender.
The court noted that even if the university’s finding John Doe was incapacitated was erroneous, that error would not be determinative. The plaintiff argued the university did not record witness statements or get them in another witness’s presence. She also argued the university did not present all of the relevant evidence, did not give her a chance to review all of the evidence, did not let her question the witnesses, and had a number of other alleged flaws in its process. The court found, however, that the allegations and exhibits demonstrated “a well crafted Policy. . .” The court further found that the university complied with its policy. The court also noted that the policy was gender neutral. The policy provided an opportunity for the parties to be heard and have legal advisor. It set forth the evidentiary standard. The plaintiff had the opportunity to call witnesses and testify. The panel provided its rationale and identified the evidence it relied upon.
The plaintiff argued the panel did not ask all of the questions she suggested when it questioned John Doe. The court pointed out she did not provide the questions until a few hours before the hearing and nothing required the panel to ask all of her questions. The panel reviewed her questions and asked those they determined were relevant.
She also argued the hearing was flawed because she was not allowed to cross-examine John Doe, based on Doe v. Baum. The court noted the Baum court acknowledged that an accused student may not always have the “right to personally confront [their] accuser. . .” The court further noted that the university in this case is a private university and therefore does not have to meet the same due process standards as the court was considering in that case. The right to cross-examine is an issue that is currently split among the circuit courts and is an ongoing subject of litigation.
The court also rejected the plaintiff’s argument the university should have conducted separate investigations and hearings, noting there was no such requirement.
The court concluded the plaintiff did not allege any facts showing actual or implied bias based on her gender. She did not provide any statistics or anecdotal evidence showing bias in the university’s Title IX investigations, hearings, or discipline.
The court found the plaintiff’s had failed to state a Title IX claim. The court granted the defendant’s motion to dismiss as to all of the plaintiff’s claims, but did grant the plaintiff leave to amend her complaint as to the Title IX and breach of contract claims.
Showing gender bias in an erroneous outcome discrimination case is usually difficult, but this case shows that it can be even more difficult when the plaintiff is a female student who has been accused and disciplined for sexual misconduct. If you have been accused of sexual misconduct at your school, you need the support of a knowledgeable Title IX attorney throughout the investigation and disciplinary process. Call (206) 622-6562 to set up a consultation with Blair & Kim, PLLC.