Eighth Circuit Affirms Dismissal of Expelled High School Student’s Title IX Case

Much of the Title IX litigation brought by students accused of sexual misconduct occurs at the post-secondary level, but a male student recently sued his former high school after being expelled.

The plaintiff was a student at an all-boys private high school in Nebraska.  According to the Eighth Circuit’s opinion, school staff overhead the plaintiff in a conversation with his friend.  The plaintiff claimed he told his friend “that he would not have sex” with a particular teacher, but the staff believed he said he would have sex with the teacher.

The school initiated an investigation.  The plaintiff alleged the Dean of Students said he considered the plaintiff “guilty” and “repeatedly demanded” the plaintiff admit he said he would have sex with the teacher.  The plaintiff claimed he ultimately gave “a false confession” in response to the “pressure” and was expelled.

The plaintiff subsequently sued the school for a Title IX violation, alleging it failed to conduct an “adequate and impartial investigation.” He also brought a state law breach of contract claim, alleging the school violated the student-parent handbook.

The district court determined the plaintiff failed to show his sex had an effect on the disciplinary process and granted the school’s dismissal of the Title IX claim.  The court then declined to hear the state law claim.

The plaintiff appealed.

Erroneous Outcome Theory

The Eighth Circuit first considered the plaintiff’s erroneous-outcome theory claim.  There may be an inference of bias when a school makes a disciplinary decision contrary to the substantial weight of the evidence or not consistent with ordinary practice.  Because sex-based discrimination is not the only inference that may be drawn from an incorrect finding or procedural issue, the plaintiff must also allege “something more” to link the erroneous outcome to sex-based discrimination.

The Eighth Circuit acknowledged the plaintiff identified some procedural errors by the school, including the incorrect finding about what he said, the school’s assumption of guilt, and a lack of opportunity to present evidence or witnesses or tell his side of the story.  The circuit court concluded, however, that even if these allegations did raise an inference of bias, there was nothing linking the disciplinary action to the plaintiff’s sex.

In a footnote, the Eighth Circuit stated that any inference in this case was “weak.” The school had relied on the staff members who heard the conversation, and a lot of that evidence supported its finding he said “would” instead of “would not.” Additionally, the plaintiff had admitted to using “vulgar language,” which the court said was “ample reason” for the school to investigate and impose disciplinary action.

The circuit court distinguished the cases cited by the plaintiff from his case.  The court pointed out those cases involved a university that was under pressure to show it was responsive to sexual misconduct complaints by female students.  The court concluded that external pressure constituted the “something more” connecting the schools’ disciplinary actions to the sex of the accused student.  The plaintiff in this case, however, had not alleged any external pressure on the school to punish male students generally or to expel him in particular.  The plaintiff’s complaint therefore failed to draw a causal connection between the erroneous outcome and sex-based discrimination.

Selective-Enforcement Theory

The Eighth Circuit then considered the selective-enforcement theory, which allows the drawing of an inference of sex discrimination when men and women are treated differently.  To prove selective enforcement, a plaintiff must identify a similarly situated member of the opposite sex who was treated differently.  The plaintiff, however, attended an all-boys school.  The court also rejected any potential argument that the staff members who overheard the conversation could serve as similarly situated members of the opposite sex, noting they were not students, had not been accused of sexual misconduct, and there was not even an allegation that they were female.  Furthermore, the plaintiff had not alleged that the school believed them instead of him due to his sex.

The Eighth Circuit concluded the plaintiff failed to plausibly allege the school expelled him because of his sex.

Grievance Procedures

The plaintiff alternatively argued that the school failed to adopt and publish grievance procedures for the resolution of complaints pursuant to 34 C.F.R. 106.8(c).

The court noted, however, that there is not a cause of action that allows a student to enforce this regulation.  The implied private right of action allows a plaintiff to sue for sex discrimination. The court pointed to prior case law holding that a school’s failure to institute a grievance procedure does not constitute discrimination under Title IX.

The court further concluded that the statute did not grant a private right of action to any identifiable class or create a private remedy.  20 U.S.C. § 1682 directs federal agencies to issue rules, regulations or orders regarding Title IX.  The court noted that the Supreme Court has previously held that a similar provision in Title VI did not create an implied right of action. Alexander v. Sandoval.

The Eighth Circuit affirmed the district court’s judgment.

Seek Experienced School Discipline Counsel

This case provides an example of Title IX allegations in an all-boys school.  This case also shows how Title IX issues can be more difficult in an all-boys or all-girls school particularly when it comes to proving external pressure or selective enforcement.  All Title IX cases are fact-dependent, however.  If your child has been accused of sexual misconduct at school, a skilled Washington Title IX defense attorney can help guide you through the investigation and disciplinary process and fight to protect your child’s rights.  Blair & Kim, PLLC also has the experience to assist with any associated criminal matter.


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