Last Friday I blogged about a Title IX case filed against Columbia University by a student who prevailed in a disciplinary hearing for sexual assault but was subsequently and allegedly harassed as a result of his accuser’s public protest. But Columbia University was also in the news last week because a federal court recently dismissed a case that had been filed by a student alleging that the university’s disciplinary process under which he was suspended for sexual assault was biased against him in violation of Title IX.

Like other similar plaintiffs, the “John Doe” plaintiff in this case attempted to raise both of the arguments courts have recognized as plausible applications of Title IX to disciplinary outcomes: arguments of erroneous outcome and selective enforcement. To be successful, both arguments must be accompanied by allegations that could support a conclusion that the university intentionally discriminated against the plaintiff on the basis of sex.

In support of his erroneous outcome claim, Doe alleged that university officials committed errors during the investigation and hearing process that prevented him from demonstrating his innocence to the hearing panel that found him responsible for assault. Specifically, Doe focused on the actions of Title IX Investigator, whom Doe claimed did not adequately investigate the details of the night the sexual encounter occurred, and who presented a report that left out his version of the story. The court was, at the outset, skeptical that the procedural deficiencies Doe alleged prevented him from demonstrating his innocence, noting that the hearing board found that Doe had exerted “unreasonable pressure for sexual activity…over a period of weeks” that rendered ineffective any consent that the victim could have provided on the night in question. As a result, the court concluded, even if the investigator had been deficient in her investigation or presentation of the facts about that night, they would not have made a difference to the outcome. More importantly, the court found lacking any specific allegation in support of Doe’s theory that the investigator was motivated by gender bias, claiming only that she had “worked for a women’s resource center in the past,” a flimsy basis for inferring bias. Nor could the court give credence to any of the other of Doe’s conclusory declarations of bias, because they were not supported by any allegations of fact.

The court also rejected Doe’s selective enforcement claim, i.e., that aside from the matter of his alleged innocence, Columbia punished Doe more severely because of his sex. Yet in this case, Doe did not allege that Columbia intentionally punished men more severely, or failed to adequately examine their innocence, because they are men. At most, the court reasoned, Doe alleged that Columbia’s disciplinary process is unfair to those accused of sexual assault, but since this category could include men or women, it does not support the conclusion that Columbia intentionally discriminates against men on the basis of sex. And while Doe may argue that men are more likely than women to be accused of sexual assault, and thus more likely to be burdened by the alleged deficiencies in Columbia’s process, this theory is not actionable under Title IX, according to the court, because of a 2001 Supreme Court decision foreclosing disparate impact lawsuits under Title VI — the race discrimination statute on which Title IX was modeled. As a result, it is not enough for plaintiffs to claim that a university’s sex-neutral policies or practice impacts one sex more than the other.

As demonstrated by this and other similar decisions cited by the court here, colleges and universities do not necessarily commit sex discrimination just because they discipline male students for sexual assault. In contrast, however, when colleges and universities discipline students in actual violation of their own procedures, those cases can be successfully litigated without the lens of sex discrimination under breach of contract and negligence theories, see, for example, this case. Yet, breach of contract and negligence claims don’t support the “reverse discrimination” narrative that some may wish to advance by using Title IX to challenge what Title IX has wrought. It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely* liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable, and its application to sexual assault should be repealed. If that is the strategy, however, it does not seem to be working so far.

* I say routinely to account for the unusual case (e.g., this case, and possibly this case) where the plaintiff has a factual basis for alleging that the university used him as a “scapegoat” in a misguided effort to demonstrate compliance with an OCR resolution agreement. When that is the situation, Title IX should provide a remedy. However, when a university gets in trouble for going beyond what Title IX requires, it reflects negatively on the university not on Title IX.

Doe v. Columbia University, 2015 WL 1840402 (Apr. 21, 2015).