Tenth Circuit: There’s nothing we can do about accused student’s ‘railroading’

An appellate court decision last week illustrates the uphill battle that often faces students who seek relief from unfair campus disciplinary proceedings in court — but several other recent decisions suggest a potential path forward for these students.  

In its March 9 opinion in Doe v. University of Denver, the U.S. Court of Appeals for the Tenth Circuit acknowledged that a student’s sexual misconduct disciplinary proceeding appeared to have been nothing short of “a railroading,” but still dismissed his claims against the university. 

The student plaintiff, John Doe, had sex with a fellow student, Jane Doe, in October 2014. Six months later, in April 2015, Jane’s then-boyfriend reported the encounter to an RA as a sexual assault. The university then contacted Jane, who filed an official complaint with DU’s Office of Equal Opportunity. The allegation was non-consensual sexual intercourse based on coercion, which the university defines as “‘unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,’ such as ‘continued pressure’ after ‘someone makes clear that they do not want to engage in sexual contact.’”

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Among other things, John’s lawsuit alleged that in adjudicating his case, DU — a private university — had discriminated him on the basis of his sex in violation of Title IX. John made several arguments in support of this claim, but ultimately, the viability of his Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

First, John argued that the Office for Civil Rights’ 2011 Dear Colleague Letter, and the pressure DU felt to comply with it (as evidenced by a number of steps the university took in its wake) gave rise to “an inference of gender bias.” Like many other courts, the Tenth Circuit held that this alone was insufficient to constitute evidence of gender bias. Rather, John would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Next, John presented “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU.” Specifically, “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

John also presented evidence of what he argued was gender bias in DU’s sexual misconduct proceedings, such as training materials referring to complainants as “survivors” and directing administrators to “communicate that you believe the survivor.” The court held that this “evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, which is insufficient to create an inference of anti-male bias.”

Finally, John presented extensive evidence that the university was biased against him in his own disciplinary proceeding. The court agreed that there was “colorable evidence” that the university’s proceeding was biased, based on the fact that the university (among other things):

• “refused to follow leads that were potentially exculpatory”;
• “disbelieved Plaintiff from the outset due to the ‘innate motive’ respondents have to lie about wrongdoing ... while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews”;
• “emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend”;
• “suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication.”

The court wrote that “an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.” (Emphasis added).

Then, in a remarkable passage dismissing John Doe’s Title IX claim, the court wrote:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.

This is the starkest exposition yet of something that a large number of courts have already held: egregious anti-respondent bias does not support a Title IX claim — even if most or all respondents are male — unless there is evidence tying that specifically to gender bias. That is because there is no claim under Title IX for “disparate impact”; rather, there has to be evidence of intentional sex discrimination. 

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Due process

First, at public universities, obvious anti-respondent bias may be a constitutional due process issue. While Title IX is limited to remedying bias based on sex, due process requires a proceeding free of any sort of bias. Recently, several courts have held that evidence of anti-respondent bias was sufficient to sustain an accused-student plaintiff’s due process claim.

In Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020), for example, the plaintiff alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that the investigator only sought out evidence that confirmed his guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.” The court agreed that this constituted a plausible due process violation. 

Similarly, in Doe v. University of South Alabama, an Alabama federal district court held that the student plaintiff had plausibly alleged a due process violation based on “allegations that indicate there may be a personal relationship between individual defendants and accusers or interested parties,” resulting in impermissible bias.

Breach of contract

At both public and private universities, biased proceedings may also give rise to a breach of contract claim where the university promises a fair and unbiased process. In Doe v. Rollins College, the U.S. District Court for the Middle District of Florida used the same evidence to grant summary judgment to the college on the student plaintiff’s Title IX claim, but to deny summary judgment to the college on his breach of contract claim. 

On his Title IX claim, the court held that while the plaintiff had cast articulable doubt on the outcome of the proceedings, he had not presented evidence of gender bias. The court agreed that the college had taken a “victim-centered” approach to the case, but, like so many other courts, held that pro-victim bias was not equivalent to gender bias.

The court then held, however, that Rollins may have breached its own policy promising to provide a fair resolution in disciplinary proceedings. Specifically, the court held:

[Plaintiff John] Doe did not provide sufficient evidence of gender bias for a Title IX claim, but he did provide sufficient evidence that Rollins favored the reporting student. Doe presented evidence Rollins didn’t treat him fairly or equitably—deciding he was responsible before hearing his side of the story and failing to follow procedures mandated by the Policy and Responding Party Bill of Rights. There is a genuine dispute whether Rollins responded fairly and equitably to Jane Roe’s allegation, precluding summary judgment.

In another recent decision, a New York federal district court found in Doe v. Syracuse University that by making a “result-driven determination” that was not “rationally based on the evidence,” Syracuse University may have violated its contractual promise to adjudicate sexual misconduct claims using a preponderance of the evidence standard. 

Choose your claim carefully

These decisions illustrate that while Title IX claims continue to be an imperfect vehicle for accused students seeking relief from campus disciplinary proceedings that are stacked against them, those same claims of bias may prove stronger in the due process or breach of contract contexts, which do not require a showing that the bias was gender-specific.