Student athlete has retaliation claim against Syracuse University

The Supreme Court decided almost 25 years ago that Title IX discrimination cases against universities for sex discrimination are going to be much harder for plaintiffs to win than Title VII discrimination cases against employers. To win the case, a Title IX plaintiff must show the university was deliberately indifferent to the student-on-student discrimination. That is a difficult burden, far higher than other discrimination cases. We see how it all plays out in this case against Syracuse University. Bottom line: the plaintiff loses her discrimination case under Rule 12, but her retaliation case -- which is not bound by the deliberate indifferent test -- will proceed to discovery.

The case is Doe v. Syracuse University, a summary order issued on November 8. I assisted in briefing the appeal, which was argued by James Aliaga, Esq. Doe was a student-athlete whose boyfriend, Scanlan -- a star athlete at the University -- abused her physically. This was a highly-publicized case in central New York. Even his teammates protested what the boyfriend did to Plaintiff and how the University responded to her complaints.  

Doe complained to university authorities about Scanlon. She claims the institution failed to properly respond to her complaints, but the district court found (and the Court of Appeals affirms) that however we might criticize the University's response, it was not deliberately indifferent to her rights as a female student-athlete. 

The abuse allegations fall into two categories. Pre-April 2021, and post-April 2021, when plaintiff's boyfriend assaulted her. The Court of Appeals (Park, Lynch and Subramanian [D.J.]) reasons that, when plaintiff reported the abuse prior to the assault, the Title IX Office promptly provided Plaintiff with information about its policies, resources (including safety escorts and counseling), and the complaint process; set up virtual meetings to discuss her situation; and sent follow-up emails to check in with Doe and to offer further support. And SU promptly entered a No Contact Order binding Scanlan, the remedy that Doe wanted. While the University did not conduct an independent investigation, that was not deliberate indifference, the Court says, because "the relevant federal regulations caution against school intervention when a complainant declines to pursue further action. The Court observes that plaintiff did not want further action. I would note that in the employment context, courts will hold the employer failed to protect the female employee in not investigating, even if she told management she did not want an investigation. The rules guiding universities are different, as you can see in this case. 

Plaintiff complained again, this time to campus police, after her boyfriend assaulted her in April 2021. Campus police waited one week before they contacted the City police. But that is not deliberate indifference under Title IX. "The approximately one-week delay between the April 2021 assault and the Syracuse Police Department and the District Attorney of Onondaga County being notified was not 'lengthy and unjustified.' The district court correctly recognized that much longer delays have not been found to be clearly unreasonable."

Plaintiff does convince the Court of Appeals that she has a retaliation claim. After she reported Scanlon's abuse, Deputy Athletics Director Keenan-Kirkpatrick and a women's lacrosse coach directed a hostile message toward her. These individuals messaged to plaintiff that she was "no longer welcome at SU Athletics by New Coach and [an] intimidating statement regarding ‘burning bridges’ or leaving in a ‘nasty way’ from Keenan-Kirkpatrick.” The Court of Appeals holds that "Doe plausibly alleges that these conversations were threats that “could well dissuade a reasonable [student] from making or supporting a charge of discrimination.” Moreover, the Court says, "it is plausible that these threats were made in retaliation for her sexual assault reporting or anticipated pursuit of legal action against SU." Plaintiff ultimately left the University. The retaliation claim will proceed to discovery.

The retaliation portion of this ruling draws from Title VII employment discrimination precedents, not Title IX educational discrimination precedents. So the burden of proof is more lenient for plaintiff on the retaliation claim than the underlying discrimination claim.