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Trump Sixth Circuit judge Chad Readler cast the deciding vote to reverse a lower court and authorize a male student, who was expelled by Oberlin College because of a sexual assault against a female student, to sue the university for sex discrimination against him under Title IX of the Higher Education Act. The June 2020 case is Doe v. Oberlin College.
Pursuant to its obligations under Title IX to help protect and deter sexual assault and harassment against its students, Oberlin began an investigation in March 2016 of a complaint by undergraduate student Jane Roe that she had been sexually assaulted by John Doe, another undergraduate. (The students are identified only with pseudonyms in the case.) Although the two had been engaging in consensual sexual contact, Roe contended that Doe had forced her into nonconsensual oral sex, even though she told him she was not sober.
After an extensive investigation and hearing, a panel found that “the preponderance of evidence established” that Doe was responsible for sexual misconduct because, as a result of Roe’s incapacitation from not being sober, there was not “effective consent” by Roe. Oberlin accepted the conclusion and expelled Doe.
Oberlin rejected Doe’s appeal, and Doe filed a lawsuit in federal court. In addition to state law claims for breach of contract and negligence, Doe claimed that he was the victim of sex discrimination under Title IX by Oberlin. The district court dismissed Doe’s discrimination claims as a matter of law, and Doe appealed.
Under past precedent that all three judges on the Sixth Circuit panel acknowledged, in order to state a proper claim under Title IX in a case like Doe’s, a plaintiff must not only allege facts that “cast some articulable doubt on the accuracy of the disciplinary proceeding,” but must also raise factual allegations that “demonstrate a particularized causal connection” between the outcome of the proceeding and “sex discrimination.” All three judges agreed that the first requirement was met in Doe’s complaint, which alleged that most of the evidence favored him. In a 2-1 decision in which Readler was the deciding vote, however, the court ruled that the complaint also met the “particularized causal connection” requirement and that Doe should be able to proceed with his Title IX case.
According to the majority, Doe’s “strongest evidence” of sex discrimination was “the merits of the decision itself,” which the majority believed had “no apparent basis.” The majority also contended that its conclusion was supported by procedural irregularities in the case, the fact that all other contested hearings during the academic year resulted in a finding against the accused, and the fact that the Department of Education was investigating Oberlin’s complaint process, which the majority contended put “pressure” on Oberlin to “combat vigorously sexual assault.”
Judge Ronald Lee Gilman strongly dissented. He was particularly critical of the majority’s decision to “conflate the two prongs” of the Title IX test, pointing out that previous decisions in the Sixth Circuit and other courts have clearly ruled that “allegations of a procedurally or otherwise flawed” disciplinary proceeding, plus general claims of sex discrimination, are “not sufficient to survive a motion to dismiss.” He also noted that the claim of “pressure” from the government was based on a case where that was “one factor set against a backdrop of uneven enforcement” that was not present in the Oberlin case, and that the statistics relied upon by the majority neglected the fact that “approximately 90% of cases” charging sexual assault or harassment at Oberlin during the relevant academic year “did not lead” to “any kind of disciplinary action.”
Overall, Judge Gilman explained, all that the majority and the complaint did concerning sex discrimination against Doe was to “speculate.” Without allegations of “particularized facts linking gender bias to Oberlin’s disciplinary practices or proceedings,” Gilman concluded that the district court was correct, and Doe’s case should have been dismissed.
As a result of Readler’s deciding vote, however, Doe will be able to pursue a potentially lengthy and disruptive case charging Oberlin with sex discrimination under Title IX because of its actions in pursuing a charge ofd sexual assault on campus. Experts have explained that sexual assaults are a “serious, pervasive problem” on many college campuses across the US. Decisions like the one in the Oberlin case threaten to make colleges more hesitant to fully combat it.