Title IX law is currently in a state of flux. New regulations went into effect in 2020 significantly increasing due process protections for students accused of Title IX violations. The president-elect, however, has reportedly expressed an intention to change those regulations. Courts have also played a part in the changes occurring with Title IX. One issue that has recently been the focus of several cases is the pleading standard of Title IX discipline cases. Some courts have required allegations of Title IX violation in a disciplinary process to meet specific doctrinal tests. Several circuit courts have recently broken from this requirement and applied a broader pleading standard, resulting in a circuit split.
In a recent case, a plaintiff sought reconsideration of the dismissal of his Title IX claims following a Third Circuit opinion that he argued changed the law. A male student, identified as “John Doe,” filed suit against the university in the District of New Jersey, making both an “erroneous outcome” claim and a “selective enforcement” claim under Title IX, as well as several state law claims.
The District Court had previously dismissed his Title IX claims. The plaintiff moved for reconsideration based on a recent Third Circuit decision in similar case, Doe v. University of the Sciences. The plaintiff argued the Third Circuit decision constituted an “intervening change in the controlling law” that justified reconsideration.
In University of the Sciences, the Third Circuit described the doctrinal framework some circuit courts have used in analyzing Title IX cases. The Second Circuit had recognized two theories of violation of Title IX: selective enforcement and erroneous outcome. The theories of deliberate indifference and archaic assumptions were subsequently recognized by the Sixth Circuit. In Doe v. Purdue University in 2019, the Seventh Circuit noted that the various theories just described how a plaintiff could “show that sex was a motivating factor in a university’s decision to discipline a student.” The Third Circuit adopted the Seventh Circuit’s pleading standard. The Third Circuit held that the alleged facts in a Title IX claim must raise a plausible inference that the university discriminated against the plaintiff on the basis of sex.
The plaintiff argued that the Third Circuit rejected the specific doctrinal standards of “erroneous outcome” and “selective enforcement.” Instead, the Third Circuit had adopted a definitive pleading standard that the alleged facts must support a “plausible inference” that the university discriminated on the basis of sex. He argued that the allegations in his complaint were sufficient under the new standard.
The district court found the Third Circuit had altered the law in Doe v. University of the Sciences and granted the reconsideration.
Although these cases were in the Third Circuit, they are important to Title IX cases everywhere because they reflect the changing Title IX law and because they strengthen the circuit split on the pleading standard for Title IX discipline cases. If you are facing Title IX allegations, you need an experienced Washington Title IX defense attorney fighting for you throughout the process. Schedule a consultation with Blair & Kim, PLLC, at (206) 622-6562.