Circuit outlines pleading standards for Title IX student discipline cases

The Court of Appeals has ruled that a male Columbia University student may sue the institution for sex discrimination arising from its finding that he had engaged in unwanted sexual contact with a female classmate. This decision says for the first time that the minimal prima facie pleading standards governing employment disputes under Title VII also apply to educational discrimination cases under Title IX.

The case is Doe v. Columbia University, decided on July 29. The media has focused attention in recent years on the fairness of academic investigations into sexual misconduct on campus, so this ruling will provide guidance into how to sue the colleges. After John  and Jane Doe had sex in a dormitory bathroom, she accused him of unwanted sexual assault. John said it was consensual. The complaint alleges the investigation was biased because the investigator was hostile in questioning him (she was deferential to the female student), did not tell him he could submit a written narrative, did not ask him about witnesses or follow up with them, took notes that did not accurately summarize what John told the investigator and, in the end, falsely depicted John of having inflicted nonconsensual sex on Jane by having coercively pressured her for weeks to have sex. At the same time, campus and outside media had criticized Columbia for not taking female complaints about sexual aggression seriously.

Since the lawsuit was dismissed under Rule 12, the Court of Appeals (Leval, Droney and Koeltl [D.J.]) borrows from the recent Title VII ruling that allows plaintiffs to plead minimal facts in support of the prima facie case. That ruling was Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). "Thus, a complaint under Title IX, alleging that the plaintiff was subjected to discrimination on account of sex in the imposition of university discipline, is sufficient with respect to the element of discriminatory intent, like a complaint under Title VII, if it pleads specific facts that support a minimal plausible inference of such discrimination." Since a prima facie case is all you need to plead a discrimination lawsuit, this holding will allow more cases to proceed to discovery.

The Complaint is reinstated on this new pleading rule because the investigator and University panel that ruled against John Doe did not seek out potential witnesses in his favor and otherwise violated its procedures intended to protect accused students. Since John further alleges that he was innocent, that permits the inference, for now, that he did not engage in any misconduct and that the University disciplined him without any basis. As for the motive -- gender discrimination -- the Second Circuit says John Doe has plausibly plead that also, as "the Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University ... accusing the University of not taking seriously complaints of female students alleging sexual assault by male students." It is plausible, the Court says, that Columbia was motivated "to favor the accusing female over the accused male, so as to protect themselves and the University form accusations that they failed to protect female students from sexual assault."