A federal district court in Rhode Island denied Brown University’s motion to dismiss a Title IX “erroneous outcome” claim filed by a male student who was found responsible for sexual assault of a female classmate and suspended for two and a half years. (The court also permitted the student to continue to litigate some of his breach of contact claim, but did dismiss his Title IX “deliberate indifference” claim.)
The court concluded that the plaintiff sufficiently alleged facts that could, if proven, satisfy both requirements of an erroneous outcome claim: (1) “facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding”; and (2) “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”
As to the first element, the plaintiff alleged that the process by which he we found responsible and sanctioned was plagued by procedural errors, including giving inadequate weight to aspects of the victim’s statement that could be interpreted as consent. At the motion to dismiss stage, the plaintiff need only allege a basis for doubt, not prove that the result of the proceeding was inaccurate, and the court had little trouble concluding the plaintiff’s allegation was sufficient.
The second element was more challenging for this court, though it ultimately decided it in the plaintiff’s favor as well. The plaintiff’s allegation of gender bias is essentially an argument that Brown has a pattern of finding men responsible for sexual assault when they are so accused. He states this is connected to gender bias, but he does not allege a specific comparison to female students accused of sexual assault not found guilty. That makes his case more challenging to evaluate than a if it had contained a “comparison” allegation, which usually satisfy the pleading standard in sex discrimination cases that, like this one, are not based on direct evidence of discrimination (something like an express policy of treating women differently from men). But on the other hand, as the court acknowledged, a comparison allegation is difficult and maybe impossible for male plaintiffs to make in cases like these, since it is rare that women are accused of sexual assault, and perhaps Brown has not had the opportunity to decide such a case in order to make such a comparison possible.
In Yusef v. Vassar College, a leading case on erroneous outcome claims, the Court of Appeals for the Second Circuit determined that a similar allegation that “men are invariable found guilty” (without a female comparison) was sufficient to survive a motion to dismiss. But since that decision, the Supreme Court has required discrimination plaintiffs to allege with a greater level of detail. As a result, some lower courts have since determined that the allegation deemed sufficient in Yusef’s case is no longer sufficient under the Supreme Court’s new pleading standard. These courts have reasoned that this is a conclusory (and thus, insufficient) allegation of gender bias because it only suggestive of a pattern that accused students are found guilty. That accused students tend to be male is not something that the university controls; students of either gender are permitted to file a complaint, and it is possible that if female students were similarly accused, the university’s alleged bias against the accused students would affect them as well.
In the Brown case, the court took a different view, reasoning that requiring anything more specific of the plaintiff at this point in the litigation would be tantamount to prematurely imposing the burden of summary judgment standard. If the argument is that the plaintiff’s allegation of gender bias lacks evidentiary support, the court says, that will get sorted out after the plaintiff has had the opportunity to take discovery. It may turn out that, as plaintiff has speculated “on information and belief” that there is bias against men, not just “bias” (alleged) against the accused.
My own view of this aspect of this opinion is a bit conflicted. On the one hand, I don’t agree with the Supreme Court’s heightened pleading standard for discrimination plaintiffs. At the same time, I don’t see the Brown court’s decision as a faithful application of that standard, since it really permits any accused student to turn his procedural challenge into a Title IX claim but simply invoking “information and belief” that the bias against the accused is motivated by gender. Moreover, while I would prefer that Title IX did permit plaintiffs to litigate disparate impact claims (claims based on a pattern without evidence of intent), the prevailing view after Sandoval, a Title VI, case, is that such claims are claims are foreclosed under Title IX as well. That said, I can’t help but notice that the court’s analysis seems to permit the packaging of what is essentially a disparate impact claim masquerading as an intentional discrimination claim. It will be interesting to see what happens to this case as litigation continues, and/or if this decision is appealed to the First Circuit.
Decision: Doe v. Brown University, 2016 WL 715794 (D.R.I. Feb. 22, 2016).