A plaintiff alleging a Title IX claim against a school must sufficiently state a claim to avoid the case being dismissed. However, in the early stages of a lawsuit, a plaintiff alleging his school discriminated against him in its Title IX investigation and disciplinary proceedings may not be aware of many of the facts that could help him prove his case. The Ninth Circuit has recently held that, to survive a motion to dismiss, such a plaintiff need only allege facts that would give rise to a plausible inference that the school discriminated against him based on sex.
Because the Ninth Circuit was reviewing a motion to dismiss, it took the well-pleaded facts as true and viewed them in the light most favorable to the plaintiff. According to the opinion, the plaintiff was pursuing a doctorate. In 2014, he began dating a student, referred to as “Jane Roe.”
In February 2017, the plaintiff ended the relationship after learning Roe had not been faithful. Although Roe was no longer a student, the two planned to meet on February 13 after the plaintiff’s class to return each other’s property. Instead, she appeared at the plaintiff’s office before his class, pounding on the door. The plaintiff did not let her in. He told Roe he had to go, but she tried to block the door. He ultimately got past her, but she followed and tried to keep him from going into the classroom.
Roe reported to the university police that he grabbed her arm and pushed her. The plaintiff was arrested. Roe filed a Title IX complaint, alleging misconduct going back to 2014. She represented she was still a student and the university did not confirm her status. She alleged she sustained a fractured rib during the February 13 incident.
The university charged the plaintiff with violating a number of policies, including those relating to dating violence, sexual harassment, stalking, and sexual assault. The university issued an immediate interim suspension, banned him from university property, and kicked him out of university housing.
The university added additional charges, alleging an incident of Dating Violence and that the plaintiff assaulted Roe on February 13. The Title IX investigator’s final Investigation Report found the plaintiff was only responsible for the February 13 incident. The report also found that Roe did not suffer any bodily injury, but that the plaintiff had put her “in reasonable fear of serious bodily injury.” The plaintiff was found not responsible for 12 other allegations. The Dean accepted the findings of responsibility but found the plaintiff only violated one policy and one section of the code of conduct. The plaintiff was suspended for two years.
The suspension became effective following a hearing on the plaintiff’s appeal. The plaintiff pursued a writ of mandamus, but lost his student visa before the court ruled in his favor.
The plaintiff filed suit against the university, alleging violations of Title IX, the Fourteenth Amendment and state law. The district court dismissed the other claims, but gave the plaintiff leave to amend the Title IX claims.
In his first amended complaint, the plaintiff alleged an erroneous outcome theory and a selective enforcement theory Title IX claim. The district court found his general allegations were insufficient and dismissed the case. The district court also denied him leave to amend again, finding amendment would be futile. The plaintiff appealed.
In a Title IX case in the Ninth Circuit, the question to be asked on a motion to dismiss is “whether ‘the alleged facts, if true, raise a plausible inference that the university discriminated [against the plaintiff] ‘on the basis of sex.’” Schwake v. Arizona Board of Regents. In that case, the court also noted that discrimination based on sex does not have to be the most plausible explanation for the claim to proceed. Schwake was published after the district court’s order in this case, so the district court had to rely on previous precedent.
The plaintiff alleged there were external pressures on the university, a pattern of bias, and specific bias against him.
In terms of external pressures, the plaintiff pointed to the Department of Education’s “Dear Colleague” letter, an NPR report on sexual assault, an audit of the university, another Department of Education guidance document, and a White House report and Senate testimony indicating schools could lose funding for violating Title IX. The Ninth Circuit found these allegations, when combined with the plaintiff’s other allegations, were sufficient to give rise to a plausible Title IX claim.
The plaintiff also alleged state courts had found the university did not provide male students with fair proceedings, articles and blogs associated with the university suggested it was “pro-plaintiff” or concerned about victims, a Title IX coordinator called an event to counter toxic masculinity a “campus achievement,” and the university was being investigated for favoring women in scholarships and programs.
The court noted other allegations showed a “pattern of gender-based decisionmaking against male respondents.” The plaintiff provided statistics showing the respondents in Title IX complaints the university pursued were “overwhelmingly male.” He also alleged the university had not suspended a female student for two years under the same circumstances or claimed that two years was the minimum suspension under similar facts involving a female student.
The university argued the plaintiff did not have personal knowledge of these facts and there could be other explanations for the gender differences in complainants and respondents.
The court noted that the plaintiff may not be able to know the full extent of alleged discrimination during the pleading stage. Additionally, he only has to show a plausible inference of discrimination; he does not have to satisfy the selective enforcement theory to survive a motion to dismiss.
As to specific bias against him, the plaintiff alleged the Respondent Coordinator told him that “no female has ever fabricated allegations against an ex-boyfriend in a Title IX setting.” This statement suggests that the university’s Title IX staff was biased against male respondents.
The plaintiff also alleged that the dean who made the final decision told him she would have let Roe into the office if she had been him. The court noted this statement suggested the dean did not consider Roe “an aggressor,” and questioned whether a similar statement would have been made if the genders were reversed.
The plaintiff also alleged the university failed to investigate when he claimed Roe was not a student and showed its bias in its failure to discredit Roe after learning about her misrepresentation of her status and false claim of injury.
The plaintiff also pointed to issues regarding the proceedings, including placing the burden on him, not allowing him to speak at the appeal hearing, and discounting his witness testimony. He also alleged that the associate dean showed gender bias by falsely saying policy required a two-year suspension for dating violence.
The court noted that the Ninth Circuit has found similar procedural irregularities support an inference of gender bias, especially when combined with other allegations.
The plaintiff’s allegations taken together support a plausible inference of sex-based discrimination by the university. This is sufficient to state a Title IX claim and survive a motion to dismiss.
The Ninth Circuit reversed and vacated the order dismissing the plaintiff’s complaint and remanded the case.
This case shows the unfairness that can occur in Title IX proceedings and the severe consequences that can result. If you have been accused of Title IX violations, an experienced Washington Title IX defense attorney can help you protect your rights throughout the investigation and disciplinary proceedings. Schedule an appointment with Blair & Kim, PLLC, by calling (206) 622-6562.