Sixth Circuit: Hearing panel’s decision may itself be evidence of sex bias in campus Title IX case

Generally speaking, you know a court opinion about due process on campus is going to be good when it starts off with a lofty paean to the core values undergirding our justice system. So it was with a decision of the U.S. Court of Appeals for the Sixth Circuit, which earlier this week reversed a district court’s decision to dismiss a sex discrimination case brought by a student expelled for sexual misconduct:

Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.

That set the tone for the court’s decision in Doe v. Oberlin College, brought by a student (known in court papers by the pseudonym John Doe) who was expelled for sexual misconduct in a proceeding that he alleged was tainted by gender bias. Doe’s accuser, Jane Roe (also a pseudonym), told Oberlin’s investigator that she was too drunk to consent to a sexual encounter they had after a party in February 2016. Later, at the hearing, Roe also alleged for the first time that Doe had forced her to perform oral sex on him. 

Doe, who was represented by Chris Muha of KaiserDillon PLLC, alleged a number of serious procedural irregularities in the investigation and adjudication of his case. The investigation took dramatically longer than expected (120 days instead of the 20–60 day range cited in college policy). Oberlin’s Title IX coordinator, Meredith Raimondo, did not respond to Doe’s desperate plea for information about the status of the investigation after 61 days had passed (“I really do feel as though I’m at my wits end,” he wrote, “please help me”) despite the fact that college policy provides that students will be notified “of the reason(s) for the delay and the expected adjustment in time frames.”

This decision represents a huge step forward for private university students seeking relief from unfair disciplinary proceedings.

Doe also alleged that he did not learn the substance of the allegation until the investigative report was issued, four months after the filing of the complaint; that the advisor provided to him by the college left the hearing early and later retweeted a comment about believing all survivors; and that the panel found him responsible despite the fact that Jane Roe’s testimony was inconsistent with her allegation that she was incapacitated. Doe’s appeal was also denied despite the fact that a new witness came forward to say that he knew Jane Roe had given false testimony at the hearing about Doe’s alleged use of force.

Doe brought a Title IX sex discrimination claim against Oberlin stemming from the disciplinary proceeding. Under the widely accepted framework set forth by the Second Circuit in Yusuf v. Vassar College, “[p]laintiffs attacking a university disciplinary proceeding on grounds of gender bias” can do so under an “erroneous outcome” or a “selective enforcement” theory. Doe brought an erroneous outcome claim, which requires a plaintiff to plead facts (1) casting articulable doubt on the outcome of a disciplinary proceeding and (2) connecting the outcome of the proceeding to gender bias. 

In March of last year, the U.S. District Court for the Northern District of Ohio dismissed Doe’s Title IX claim, holding that although he had cast articulable doubt on the outcome of the proceeding, he had not tied that outcome to gender bias. The district court rejected Doe’s argument that some of the Title IX coordinator’s statements about the goals of Oberlin’s policy suggested gender bias, holding that Plaintiff erroneously “jump[ed] to the conclusion that this kind of ‘survivor-centered’ approach to campus sexual assault must mean that the Policy would also have to be biased against men.” The court also rejected Doe’s claim that Oberlin may have acted in a biased manner because the college was under pressure, at the time of his case, from an ongoing Office for Civil Rights investigation into its handling of sexual assault allegations.

Earlier this week, the Sixth Circuit reversed the dismissal of Doe’s Title IX claim. In its ruling, the court considered not only Doe’s allegations of gender bias (which were substantial), but also the substance of the hearing panel’s decision in Doe’s case. While the merits of a school’s decision are normally considered only under the first, “articulable doubt” prong of the erroneous outcome analysis, the Sixth Circuit ruled that “when the degree of doubt passes from ‘articulable’ to grave, the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.” (Emphasis added.)  Indeed, the court felt that the panel’s decision was so totally at odds with the facts that “one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year.” (Of note: the College did not acquit any Title IX respondents sent to a hearing panel during the 2015–16 academic year, something the court also found to be evidence of bias.) 

Judge Ronald Gilman dissented from the decision, arguing that the majority had conflated the two prongs of the erroneous outcome test and that while Doe had shown articulable doubt, he had not provided sufficient evidence of gender bias. Judge Gilman’s reasoning is typical of many courts that have dismissed accused students’ Title IX claims even in cases where an investigator or hearing panel reached a decision that appeared to be erroneous. However, it overlooks the fact that in addition to the strong evidence of actual innocence, Doe also presented quite a bit of evidence pointing to gender bias, including pro-complainant statements made by Oberlin’s Title IX coordinator and Doe’s own advisor; the “100 percent responsibility rate” for respondents in sexual misconduct hearings in 2015–16; and the pressure on Oberlin from OCR’s investigation into the College’s handling of sexual misconduct claims. 

Along with the Third Circuit’s recent decision in Doe v. University of the Sciences, this decision represents a huge step forward for private university students seeking relief from unfair disciplinary proceedings. While public university students have constitutional due process rights, the path has been much harder for private university students, since courts have historically been reluctant to interfere in the inner workings of campus disciplinary proceedings. But as FIRE has long argued, decisions in cases involving sexual misconduct and other serious forms of non-academic misconduct should not be entitled to the same deference that a court might give to a university’s decision in an academic matter that is uniquely within its expertise.