Title IX ruling is favorable authority for universities

One of the most rapidly developing areas of law is that governing legal standards in cases involving students accused of sexual assault. To make matters more complicated for colleges and universities, the law has undergone major developments on different fronts simultaneously.

First, starting in the last decade, major developments occurred in application of Title IX of the Education Amendments of 1972, which prohibits institutions of higher education from discriminating "on the basis of sex." Under the Obama administration, the federal Department of Education, Office for Civil Rights aggressively applied this law to combat sexual assault, opening a record number of investigations of colleges and universities and issuing extensive guidance on the office's expectations of what institutions need to do to comply with Title IX. In the last several years, with the change in presidential administration, major changes continue: The DOE rescinded much of this guidance, and plans to provide new regulations concerning Title IX compliance, including potentially rules for conducting student disciplinary hearings. (In November 2018, the DOE issued draft regulations for public comment.)

Second, Title IX allows students to sue their institutions through private rights of action. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999). Thus, a victim of sexual assault can argue they should recover general and special damages, attorney fees, and even punitive damages if they prove an institution was "deliberately indifferent" to an environment on campus that presented a sufficient danger of assault. Students have argued that an institution's failing adequately to discipline perpetrators of sexual assault on campus can help prove deliberate indifference.

Third, on the opposite front, students accused of sexual assault have in the last several years sued, contending schools rushed to judgment, depriving them of their due process rights (public institutions) or their common law or contractual rights to a fair process (private institutions).

In response, in the last several years, and particularly in the last 10 months, the California Court of Appeal has exhaustively analyzed how to assess due process and fair process in this context. These cases included opinions from the 2nd District Court of Appeal, Division 4, in Doe v. Allee, 30 Cal. App. 5th 1036 (2019), Division 7 in Doe v. University of Southern California, 29 Cal. App. 5th 1212 (2018), and Division 1 in Doe v. Claremont McKenna College, 25 Cal. App. 5th 1055 (2018). One important lesson from these decisions is that a student facing a severe disciplinary penalty must have an opportunity to cross-examine a central witness whose credibility they dispute. This can be cross-examination through indirect means (an example might be passing questions to the discipline panel to ask on behalf of the accused student).

Fourth, another form of legal threat has arisen from students facing sexual assault accusations -- lawsuits contending that the institution's disciplinary system itself discriminates "on the basis of sex" in violation of Title IX. Indeed, in Doe v. Columbia University, 831 F.3d 46, 55-56 (2d Cir. 2016), the 2nd U.S. Circuit Court of Appeals endorsed this theory of recovery where the institution allegedly failed to follow its own policies and where the plaintiff alleged that widespread publicity of assault allegations on campus led to bias against men.

Last week, however, the 9th U.S. Circuit Court of Appeals provided some respite for colleges and universities in this fourth type of lawsuit in the Title IX litigation context, and perhaps in the third as well, i.e., for lawsuits alleging violation of due process/fair process.

In Austin v. University of Oregon, 2019 DJDAR 4815 (9th Cir. June 4, 2019), the 9th Circuit approved the district court's dismissal of a Title IX lawsuit brought by three University of Oregon basketball players disciplined for sexual misconduct. The plaintiffs alleged that the university violated Title IX under three theories, "selective enforcement, erroneous outcome, and deliberate indifference." Id. at 4817. The court held that for none of these theories did the plaintiffs provide a sufficient claim for relief under applicable pleadings standards. Id.

The 9th Circuit also clarified what the federal pleadings standards are for a Title IX claim. The district court had determined that a plaintiff asserting such a claim need only allege facts necessary to establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Under McDonnell Douglas, a plaintiff states a prima facie case in the employment context "by showing: (1) that they are members of a protected class; (2) that they were qualified for their positions and performing their jobs satisfactorily; (3) that they experienced adverse employment actions; and (4) that 'similarly situated individuals outside [their] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.'" Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (quoting authority).) The Austin court, however, held that McDonnell Douglas did not apply at the pleadings stage, and instead constitutes a tool designed to facilitate adjudication at the summary judgment phase of a case. Id. at 4816. (The 2nd Circuit had taken a different approach and applied McDonnell Douglas at the pleadings stage of a Title IX case, in Doe v. Columbia, referenced above.)

The Austin decision helps higher education institutions on the due process front also. In addition to suing under Title IX, plaintiffs asserted a claim for violation of due process rights. In a short discussion, the 9th Circuit in broad terms disposed of the claim based on the facts pleaded. The court observed that the university's disciplinary procedures allowed the plaintiffs to choose between a "panel hearing" and a simpler and more streamlined "administrative conference," which is what plaintiffs selected. Austin, 2019 DJDAR at 4816. According to the pleadings, "the administrative conference procedure included notice of the character of the accusations against each student athlete, a summary description of the types of processes available, and the range of possible penalties; access to the case file; the opportunity to review and respond to the investigative report including witness interviews; representation by an advisor, including counsel; and a neutral administrator as a hearing officer." Id. The 9th Circuit concluded that the plaintiffs received "the hallmarks of procedural due process," which consist of "notice and a meaningful opportunity to be heard." Id. at 4817.

The court also found the fact that the plaintiffs had legal representation and negotiated a certain level of discipline (which included a suspension for several terms) essentially negated any denial of due process claim: "Because the student athletes were represented by counsel and negotiated the scope of sanctions, they can hardly be heard to complain about the administrative hearing's procedural safeguards." Id. at 4817-18.

The 9th Circuit in Austin covers in a few paragraphs what the Court of Appeal opinions discussed above cover in many pages of cogent discussion. Austin does not mention the opinions. Nor does it mention the ability of plaintiffs to cross-examine witnesses, a central issue in those opinions. True, Austin does not involve California law, but its reasoning will be relevant in California because it expressly interprets federal standards for due process in the student discipline context. In a federal action for violation of due process rights, for example, a public institution in California may only need to argue that Austin's very general discussion of due process rights needs to be satisfied for a university to prevail. However interpreted, Austin's discussion of due process will likely provide California educational institutions some rare support in student rights litigation. 