Recent Federal Appellate Decision Highlights Risks Posed to Public Universities and Colleges from Constitutional Violations in Title IX Sexual Misconduct Investigations

The federal Sixth Circuit Court of Appeals issued a decision on February 9, 2018 that highlights the many challenges currently facing public universities and colleges’ efforts to comply with Title IX.[1] In John Doe v. Miami University, the Court held that a male student’s lawsuit against Miami University in Ohio and an individual administrator relating to their investigation of sexual misconduct allegations against him should not have been dismissed. That decision has broad implications for educational organizations that receive financial assistance from the federal government because it identifies areas where sexual misconduct investigations may expose schools to civil liability for violation of their students’ constitutional rights. Schools must ensure that their vital efforts to eliminate sexual harassment and violence on their campuses are not stymied by student lawsuits challenging the fairness and impartiality of disciplinary proceedings.

John and Jane Doe, both students of Miami University, had previously engaged in several consensual physical encounters. During one encounter in which both students had consumed alcohol, however, Jane claimed that the encounter transitioned from consensual to non-consensual. The university initiated an investigation of John for violation of the sexual assault policy in the university’s Student Conduct Regulations. John denied wrongdoing and requested that the violation be adjudicated by an Administrative Hearing Panel. The Director of the University’s Office of Ethics and Student Conflict Resolution initially reviewed the evidence against John and chose to pursue disciplinary action against him. That director also served as one of the three members of the hearing panel. The hearing panel found John responsible for a violation of the student conduct regulations and suspended him.

John sued the university and the individual administrators involved in the disciplinary proceeding in federal court. The judge dismissed his case. The Sixth Circuit Court of Appeals’ February 9, 2018 decision reversed the dismissal of a claim against the university for violation of Title IX and of two claims against the director for violations of John’s constitutional rights. The Court concluded that John sufficiently claimed that the university violated Title IX by reaching an erroneous outcome. An erroneous outcome Title IX claim requires John to point to facts that create doubts about the accuracy of the panel’s decision and to show that gender bias caused the panel’s decision.

Inconsistencies in Jane’s written statement (for example, she stated both that “I said no” and “I never said no” with respect to the same sexual act), discrepancies in the panel’s written findings, and the director’s potential application of the wrong standard of consent sufficiently raised doubts about the accuracy of the panel’s decision. The Court also determined that John sufficiently alleged that gender bias motivated the panel’s decision. John relied on statistical evidence showing that the university found every male student accused of sexual misconduct to be responsible for the alleged violations, and that ninety percent of students found responsible for sexual misconduct have male first names. John also pointed to pressure on the university from the federal government and from victim lawsuits to increase the “zealousness” of its prosecution and punishment of sexual assault. Further, with respect to John’s specific case, he pointed to the university’s initiation of an investigation into him but not Jane, although both had been drinking before the encounter (with John so intoxicated that he was unable to consent), and to the director’s comment during the hearing that “I’ll bet you do this all the time” as evidence that the university makes disciplinary decisions on the basis of a student’s gender. The Court concluded that “[t]aken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports . . . a reasonable inference of gender discrimination.” John’s Title IX claim against the university, therefore, could proceed.

The Court also determined that John sufficiently alleged that the director deprived him of his constitutional rights to due process and equal protection. John plausibly alleged that the director violated his equal protection rights by pursuing a disciplinary action against him only, despite having credible information that both he and Jane had violated the university’s sexual misconduct policy. The allegations also showed a violation of John’s due process right to present his side of the story to an unbiased decision maker because the director, who served the triple role of investigator, prosecutor, and judge, dominated the hearing panel and made statements indicating that she had predetermined his guilt. Further, the director’s alleged failure to provide John with his disciplinary file prior to the hearing showed a violation of his due process right to receive the evidence against him. Accordingly, the Court held that John’s two claims against the director for violations of his constitutional rights to equal protection and procedural due process could also proceed.

Educational institutions that receive federal funding have struggled with their obligation under Title IX to ensure that their students are free from discrimination in the form of sexual harassment and assault.[2] Those struggles have most frequently resulted in Department of Education investigations[3] and civil claims by the victims[4] based on a failure to adequately investigate and respond to complaints of sexual harassment or assault. However, decisions like the one in John Doe v. Miami University reveal a novel issue. Schools that investigate student misconduct as part of their efforts to eliminate sexual harassment and assault on their campuses must also ensure that their disciplinary proceedings satisfy minimum standards of due process and are free from indications of gender bias. Otherwise, as that case demonstrates, those schools and their employees may have to answer civil claims from the accused students as well.

It is of paramount importance that federally-funded universities and colleges continue their efforts to eliminate sexual violence on their campuses. The failure to ensure an investigatory and disciplinary process that affords due process and equal protection to accused students undermines that objective, however, by forcing victims to relive traumatic encounters, miring schools in costly and lengthy litigation, and preventing students from continuing to pursue their educations. In addition to schools’ existing efforts to comply with Title IX, it is essential that they consult with a legal professional to ensure that their disciplinary proceedings provide accused students with due process and equal protection under the law. For so long as Title IX requires schools and their employees to serve the mixed role of student advocate, investigator, prosecutor, and judge during a sexual misconduct investigation, John Doe v. Miami University demonstrates that their actions will have to stand up to scrutiny in court.

James Jeffrey Burns is a business and commercial litigation attorney with Johnson & P.A. in Tampa, Florida. He can be reached by phone at (813) 699-4859 or on the web at www.jnd-law.com.

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[1] Doe v. Miami University, No. 17-3396, 2018 WL 797451 (6th Cir. Feb. 9, 2018), available at http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0029p-06.pdf.

[2] Title IX requires that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

[3] See, e.g., Press Release, U.S. Dep’t of Educ., Maryland’s Frostburg State University Found in Violation of Title IX, Reaches Agreement with U.S. Education Department to Address, Prevent Sexual Assault and Harassment (Sept. 9, 2016), available at https://www.ed.gov/news/press-releases/maryland%E2%80%99s-frostburg-state-university-found-violation-title-ix-reaches-agreement-us-education-department-address-prevent-sexual-assault-and-harassment (“Frostburg was found to be in violation of Title IX for failing to promptly and equitably respond to complaints of sexual violence, including sexual assault, and for failing to end the sexually hostile environment for the two students.”).

[4] See, e.g., Doe, 2018 WL 797451, at *10 (noting that Miami University “was a defendant in a lawsuit brought by a student who alleged that she would not have been assaulted if the University had expelled her attacker for prior offenses”).