Seattle Attorneys Blog
Although the preamble to the new Title IX regulations states the regulations do not apply retroactively, a Temporary Restraining Order issued by a New York federal court recently raised questions about retroactive application. The court has recently rendered a much more detailed opinion on the issue of a preliminary injunction in the Title IX discrimination case.
According to the court’s opinion, the plaintiff had a consensual sexual relationship with a female student, identified as “Jane Roe.” She invited him to her dorm room to discuss an incident where she allegedly caught him recording her getting dressed. The plaintiff alleged he had to walk to her room because he was too drunk to drive. He continued to drink after he arrived. The two had consensual sex, and then each filed Title IX complaints against the other for the events that followed.
Roe alleged that they argued and the plaintiff put his hand around her neck and squeezed. She also alleged he engaged in sexual activity without her consent.
The plaintiff alleged he was intoxicated and Roe pressured him to have unprotected sex. He said he eventually gave in. He claimed that afterward he was too drunk to get out of bed to get a drink of water.
Roe’s resident advisor reported the alleged sexual assault to the university on January 27, 2020. The university notified the plaintiff of the investigation on January 31. The plaintiff filed a Title IX complaint against Roe on June 9, alleging he was too intoxicated to consent. On August 4, the university concluded it was more likely than not the plaintiff violated the 2018 sexual misconduct policy. The plaintiff requested a hearing.
The university also dismissed his Title IX complaint. The university found his complaint was not sufficiently credible, based on his ability to engage in complex conversation, his memory of details, his ability to go outside come back at 2:30 am, and his failure to prove he had not willingly consumed alcohol or initiated the sexual activity.
The plaintiff appealed, but the university denied the appeal.
After the university updated its policy to comply with the new regulations, the plaintiff and his attorney asked the university to apply the new policy, but the Title IX coordinator told him the rules were not retroactive.
The plaintiff sued the university, alleging its handling of his complaint and its refusal to apply the new policy constituted sex discrimination under Title IX. He also requested a temporary restraining order and a preliminary injunction to prevent the university from holding the hearing under the 2018 policy. The court granted the temporary restraining order and heard arguments on whether it should be converted into a preliminary injunction.
The court determined that it would consider whether to freeze the hearing altogether, rather than requiring the university to apply the new policy. A plaintiff seeking an injunction must show a likelihood of irreparable harm, a likelihood of success on the merits or serious questions as to the merits and a balance of hardships in the plaintiff’s favor, a balance of hardships in the plaintiff’s favor, and public interest.
The court therefore considered the plaintiff’s likelihood on the success of the merits of his claim. In the Second Circuit, sex discrimination can occur when the university “(1) takes an adverse action against a student or employee[;] (2) in response to allegations of sexual misconduct[;] (3) following a clearly irregular investigative or adjudicative process[; and] (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex[.]” Menaker v. Hofstra Univ.
The court found application of the 2018 policy when the university had a policy with greater due process protections constituted an adverse action. Having two separate processes was also an irregular adjudicative process. The adverse action was in response to allegations of sexual misconduct. The court noted that minimal evidence of pressure may be sufficient when there are clear procedural irregularities, and a lack of evidence supporting this element did not have a significant impact on the plaintiff’s likelihood of success.
The court noted the inequitable treatment suggested gender could be a motivating factor in how the plaintiff was treated. The 2018 policy did not include voluntary consumption as a factor related to the complainant’s ability to consent. Furthermore, the policy provided that consent could be withdrawn at any time. Roe’s complaint was not subject to these factors.
The court also found that the plaintiff had demonstrated a likelihood of success on his selective enforcement claim. He needed to show that “(1) ‘similarly situated female students. . . were treated differently during investigations and disciplinary proceedings concerning sexual assault’; and (2) the defendant ‘had the requisite discriminatory intent.’” The court found the plaintiff had provided sufficient evidence that gender was a motivating factor, which was sufficient evidence of discriminatory intent. Additionally, the court found Roe was a similarly situated female student because both complaints arose from the same night.
The court found the plaintiff proved a likelihood of success on both claims against the university.
The court found the plaintiff faced an imminent harm that could be prevented by a preliminary injunction. The court further found that the harm was irreparable.
The court found the balance of the hardships favored the plaintiff. The court noted that the plaintiff’s reputation and career was at stake, while the university would only be delaying a single hearing where there was evidence of potential discrimination. Additionally, the university should also have an interest in ensuring accused students are not unjustly punished.
The court also found the public interest element weighed in the plaintiff’s favor. The new Title IX regulations show that protecting due process of accused students is an important issue nationally. The court noted that protecting Roe’s rights is also important, but that cannot override the plaintiff’s right to a fair determination.
The court granted the injunction enjoining the university from holding the disciplinary hearing or disciplining or sanctioning the plaintiff for the Title IX complaint until the case is resolved. The court did note that it would reconsider the injunction if the parties agree to proceed with the hearing under the 2020 policy.
The court did not go so far as to say that the new rules are retroactive, but it did suggest not applying the new process could be problematic. If you are facing a Title IX investigation, you need an experienced Washington Title IX attorney on your side to protect your rights. Schedule a consultation with Blair & Kim, PLLC by calling (206) 622-6562.