Two male students who were suspended from Salisbury University in Maryland can continue to litigate their claim that the university’s flawed disciplinary process was the product of gender bias.  A federal court denied the university’s motion to dismiss this claim, which means the plaintiffs’ allegations would be sufficient to constitution a violation of Title IX in the event they are eventually proven true.  In “erroneous outcome” cases like this one, that means the plaintiff must first allege procedural flaws that call the disciplinary outcome into question.  Second, the plaintiff must allege  specific examples of gender bias that could plausibly have provided the motivation for the flawed proceeding.

The plaintiffs’ complaint in this case alleged a number of procedural flaws including:

• that they were denied the opportunity to ask “critical questions” of the witnesses
• that the university withheld from them the witness statements, witness lists, and other evidence that they had the right to review before the hearing
• that they were denied the right to have their attorney present even though university policy affords them this right
• and that the investigators improperly influenced the disciplinary board in the way their presented their findings and conclusions

The court found these allegations sufficient of the first requirement.  The court also found that the plaintiffs’ complaint contained the requisite allegations of gender bias, though it was a “close call.”   Some of the plaintiffs’ bias allegation was based on the university’s effort to raise awareness about the problem of sexual assault on campus.  The court dismissed the idea that such bias could be inferred from program announcements presented in a “gender-neutral tone, addressed to all students, and published to improve campus safety for both men and women.”  Similarly, funding a sexual assault prevention program with a grant from the Avon Fund for Women did not evidence bias, because the program was advertised “for all students.”  However, the plaintiffs also alleged that “on information and belief” the university possesses communication evidencing its intent to impress the Department of Education by railroading male students accused of sexual assault. I was surprised that the court accepted this vague of allegation of bias as sufficient, but it did.  The court admitted that a general allegation of bias would not have been sufficient.  Allowing plaintiffs to proceed on an allegation like “we believe you have evidence of bias in writing” seems like a pleading tactic that would work any time a plaintiff does not have anything on which to base a specific allegation of bias, and thus operate as an end run around the requirement that allegations be specific in the first place.

In sum, the court rejected the claim that the university’s sexual assault awareness programs supported the inference sex discrimination (which is probably reassuring for universities running similar programs). But it did permit plaintiffs to seek to “uncover discoverable and admissible evidence that Plaintiffs’ gender was a motivating factor behind SU’s allegedly flawed disciplinary procedures and wrongful conclusions.” As a practical matter, Salisbury University will have to respond to the plaintiffs’ requests for information, records, and depositions. If no evidence to support bias turns up, the university can later move for summary judgment.