Federal Due Process and Ripeness in Title IX Claim against Private College

Lawsuits arising from a Title IX complaint or investigation can involve a number of complex issues.  In a recent case, the Sixth Circuit considered both whether a private college’s Title IX procedures were subject to a § 1983 federal due process claim and when a Title IX claim is ripe for review.

According to the Sixth Circuit’s opinion, a student, identified in the court documents as “Jane Roe,” reported alleged sexual misconduct by the plaintiff in December 2019.  Pursuant to Roe’s request, the Title IX office did not immediately inform the plaintiff of the allegations or investigate.   The plaintiff was notified of the complaint by email on February 4, 2020.  He alleged the college’s failure to timely investigate prevented preservation of security footage.

The plaintiff claimed he had to hire a private investigator due to the lack of information from the college.  He alleged Roe told his private investigator she planned to use the informal Title IX process.

The plaintiff’s attorney notified the Title IX Coordinator the plaintiff also wanted to use the informal process, but expressed frustration the delay in notice allowed exculpatory evidence to be lost.  The attorney also informed the Title IX Coordinator the plaintiff had heard Roe told other students about the complaint.  The plaintiff asked the college to tell Roe to stop talking about the allegations.

The plaintiff discussed the investigation with the Title IX Coordinator over the phone on February 24 and then in person the next day.  He was officially informed the complainant requested an informal resolution, so there would not be further investigation.  The Title IX Coordinator told him he was not notified of the allegations and the investigation had not begun immediately because the college’s policy allows the complainant to decide when to being the resolution process.

The Title IX Coordinator informed the plaintiff on February 26, however, that Roe decided to pursue a formal resolution.  The plaintiff expressed concerns about the process and made a formal retaliation complaint, alleging Roe had changed to the formal resolution process because of his complaint she slandered him6.  He also argued the college was complicit with her in withholding notice of the allegations so he did not have access to exculpatory evidence.

The college hired a consultant to independently investigate the allegations.  After she requested a meeting with the plaintiff and his attorney, the plaintiff requested details about the complaint and exculpatory evidence.  His attorney emailed a demand letter on March 5, reiterating the previous requests and adding questions about the investigation’s status.  The Title IX Coordinator provided the complaints and reports the next day.  On March 9, the consultant provided a status of the investigation, stating she was interviewing witnesses and gathering information.  She stated she would provide a draft report when she completed the investigation and the parties could respond and continue with the resolution procedures.  She also informed the plaintiff she did not think the college was opening a complaint against Roe for retaliation or filing a false claim.  She said it was her understanding Roe had changed to a formal resolution process because she thought the plaintiff was not acting “towards mutual resolution” after he hired a private investigator and counsel.

The plaintiff filed suit against the college and other defendants on March 20, 2020, seeking a temporary restraining order and preliminary injunction. He alleged violations of federal due process, Title IX, and state tort laws.  After the case was removed to federal court, the district court denied the motion for a restraining order and dismissed the complaint without prejudice because the investigation was not complete.  The court did not, however, enter a formal ruling on the docket sheet.  The plaintiff moved for reconsideration and asked for leave to amend his complaint to address the federal court’s jurisdiction.  The court granted the motion to amend the complaint.

In a hearing on the reconsideration motion, the college’s attorney argued the private college was not subject to federal due process requirements.  The plaintiff’s attorney argued it could be considered a state actor based on state and federal funding.  The district court agreed with the college and denied the motion for temporary restraining order and dismissed the plaintiff’s § 1983 with prejudice.  The court dismissed the Title IX and state law claims without prejudice.

The plaintiff appealed.

Procedural Due Process Claim

The Sixth Circuit considered whether the district court met the procedural requirements of a sua sponte dismissal on the merits. The Sixth Circuit concluded the district court had not given the plaintiff notice it intended to dismiss his federal due process claims as a result of its conclusion the college was not a state actor, sufficient opportunity to respond or amend his complaint, or a timeline for responding.  It determined, however, the record was sufficient for it to review dismissal of the § 1983 claim on the merits.

The activity of a nominally private actor may be attributed to state action when it results from “coercive power” or “significant encouragement” by the state, or when the private actor acts as a “willful participant in joint activity with the State or its agents.” Brentwood Academy. Previous case law in the Sixth Circuit has held that a university is not a state actor just because it conducted a Title IX investigation. Nor do its actions constitute state action just because it risks losing federal funding. Faparusi v. Case Western Reserve University. Case law has also held that private colleges do not become state actors by conducting Title IX investigations.

The Sixth Circuit rejected the plaintiff’s arguments for why the college was a state actor, as “practically identical to those we have previously rejected as insufficient. . .”  It also stated that it would be futile to allow him to amend his complaint to further address the issue.  The Sixth Circuit therefore affirmed the district court’s dismissal of the federal due process claim.

Title IX and State Law Claims

The Title IX and state law claims had been dismissed without prejudice as “premature.” In the Sixth Circuits, courts must consider three factors to determine if a claim is ripe for adjudication: how likely the alleged harm is; whether the factual record is sufficient for “a fair adjudication of the merits. . .,” and whether the parties would face hardship if review is denied.

The plaintiff alleged an erroneous outcome Title IX claim.  When the plaintiff filed the amended complaint, the college had not completed its investigation and therefore had not reached an outcome.  However, the college concluded its investigation before the appeal and found the plaintiff had not violated its Sexual Misconduct Policy. The Sixth Circuit therefore concluded the erroneous outcome claim was no longer unripe, but was now moot.

The plaintiff also alleged a Title IX selective enforcement claim, requiring him to show a similarly-situated female student was treated more favorably due to gender. He alleged selective enforcement because the college refused to investigate his retaliation claim.  He also alleged selective enforcement because the college investigated the Title IX complaint against him for having sexual contact with the complainant while she was intoxicated but did not investigate Roe for her actions when Doe was also allegedly intoxicated at the time. The plaintiff did not allege that he actually filed a complaint based on this conduct, however. He claimed he endured emotional distress, suffered reputation and economic damages, and lost educational and career opportunities.

The Sixth Circuit noted that the limited factual allegations in the amended complaint supporting the plaintiff’s alleged damages showed that additional factual development was needed when the amended complaint was filed.  When the plaintiff filed his complaint, it was uncertain if the college would investigate the retaliation claim.  The Sixth Circuit pointed out that the college did not officially start its investigation of the complaint against the plaintiff for almost two months.  When the amended complaint was filed, the college still could have opened an investigation into the plaintiff’s retaliation complaint.

The Sixth Circuit concluded the district court correctly dismissed the selective enforcement claim. However, since that time, the college closed its investigation. The selective enforcement and state law claims were no longer unripe for review.  The record was not sufficiently developed for the Sixth Circuit to evaluate the validity of the claims, so they had to be remanded.

The Sixth Circuit affirmed the district court’s dismissal of the federal due process claim and remanded the rest of the claims to the district court.

Contact a Skilled Title IX Attorney

In this case, the plaintiff was prepared to act promptly when the college was not.  Although his claims were not ripe for review when the complaint was filed, the Sixth Circuit ultimately concluded they had ripened by the time it decided the appeal.  If you have been accused of violating Title IX, a knowledgeable Washington Title IX defense attorney can help you fight to protect your rights.  Set up your consultation with Blair & Kim, PLLC, by calling (206) 622-6562.


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