Ninth Circuit Affirms Dismissal of Anti-Male Bias Claims Against University of Oregon

One of the most interesting and important procedural questions to arise from the spate of Title IX challenges brought by students disciplined for sexual misconduct relates to the pleading standard that courts should use to evaluate their sex discrimination claims. It’s essentially a question of how much and what kind of detail plaintiffs need to put in their complaint in order to initiate litigation challenging that their punishments were tainted by anti-male bias prohibited by Title IX. Too little detail and the case is dismissed before it really begins. Enough detail, and the parties proceed with the discovery phase of litigation before having another chance to get the case dismissed before trial.

“How much detail should a plaintiff be required to plead?” is a question with a lot riding on it. On the one hand, it’s not fair to require plaintiffs to plead a lot of detail since this question comes up early in the litigation before the plaintiff has had a chance to take depositions, request documents, and demand answers to interrogatories–all of which happen at the discovery phrase. On the other hand, if the standard is too lenient, plaintiffs can force defendants into litigation without any real basis for doing so. If every student who is disciplined for sexual misconduct can draw a university into expensive and time-consuming discovery, universities might be reluctant to discipline them in the first place, placing other students at risk. Lower courts called upon to strike this balance have been vexed by the seeming mixed messages sent by the Supreme Court. In 2002, it affirmed that discrimination plaintiffs follow the normal rules of civil procedure, which requires only a “a short and plain statement of the claim showing that the pleader is entitled to relief” (and thus refused to incorporate into the pleading requirements the elements of the McDonnell-Douglas framework, which creates a rebuttable presumption that the defendant was motivated by bias, where other obvious explanations have been ruled out). But in later cases, the Court held that pleadings need to be supported by sufficient facts that the render the claim plausible on its face; bare conclusory allegations are not enough. 

In Title IX discipline cases, plaintiffs frequently allege that the university committed procedural or substantive errors in their case specifically because university officials were biased against men. They often allege as the basis for this conclusion that the university is facing political and social pressure to curb sexual misconduct. Some courts, most notably the Second Circuit Court of Appeals, has accepted this kind of pleading as sufficient, reasoning that it’s a plausible basis for anti-male bias. Yesterday, the Ninth Circuit Court of Appeals took the opposite view. In a case against the University of Oregon, three male former basketball players alleged that the university engaged in unlawful sex discrimination when it suspended them and revoked their athletic scholarships for engaging in nonconsensual sex with a female student (they also alleged due process violations, which were also dismissed). But the court rejected that the alleged fact of the University president’s speech, in which he condemned the plaintiffs’ misconduct prior to their hearing, and referred to the complainant as a “survivor”, as well as campus protests surrounding the case, was a plausible basis for concluding that anti-male bias (as opposed to anti-respondent bias) tainted the disciplinary process. Notably, the plaintiffs did not plead any facts connecting the speech or the protests and University’s disciplinary actions “to the fact that the student athletes are male.” The court also rejected that pleading that “the University disciplines male students for sexual misconduct but never female students” is a plausible basis for concluding that the university could be biased against men, since it fails to contextualize this fact with any suggestion that female University students are similarly situated, i.e., that they have been accused of comparable misconduct.

The Second and the Ninth Circuit’s disagreement essentially boils down to whether being accused of sexual misconduct is so intrinsically tied to maleness that bias against the former is evidence of bias against the latter. In my opinion it makes sense to distinguish between conduct and status as the Ninth Circuit does. It will be interesting to see if this Circuit split endures and whether this issue about pleading pushes Title IX to the Supreme Court’s docket once again.

Austin v. Univ. of Oregon, No. 17-35559, 2019 WL 2347380 (9th Cir. June 4, 2019).