Circuit rules against Title IX sex discrimination plaintiff against St. John's University

In a divided opinion, the Court of Appeals holds that a former St. John's University student who claims he was falsely accused of sexual misconduct  cannot sue the university for sex discrimination under Title IX because the complaint does not plausibly assert that the university ruled against him because he is a male.

The case is Roe v. St. John's University, issued on January 31. This a lengthy ruling that was argued in April 2022. The Court normally does not take this long to resolve cases, but this is a complicated one that implicates a variety of legal issues, including Rule 12 pleading standards and how plaintiffs may survive a motion to dismiss their Title IX claims arising from university discipline.

Roe is the male plaintiff. There was two incidents leading up to this claim. In the first incident, a female SJU student, Doe, affirmatively placed his hand on her fully-clothed breast, but plaintiff declined the sexual invitation and she kicked him out of her room. Doe next told SJU that plaintiff had sexually assaulted her. SJU investigated the allegation and, based on his "admission" that he had in fact engaged in physical contact of a sexual nature (touching Doe's breast), determined that plaintiff had engaged in non-consensual sexual contact, resulting in a one-semester suspension. The next episode involved "Mary Smith," who claimed that plaintiff had sexually assaulted her while he was serving his suspension. Plaintiff denied the allegation, and Doe sent out a tweet accusing plaintiff of sexual misconduct. SJU later sustained Mary Smith's complaint against plaintiff, who claims the university got the facts wrong and deviated from its procedures in ruling against him. Plaintiff was expelled and now sues SJU for sex discrimination.

While this case arrives at the Court of Appeals in a Rule 12 posture, which provides a low pleading standard for plaintiffs seeking to avoid dismissal, the Second Circuit (Sack and Parker) agrees with the district court that plaintiff does not plead a prima facie case of discrimination. The Court, in summarizing its prior decisions on these issues, says there are generally two ways for plaintiffs to win these claims: (1) the erroneous outcome claim, where the university gets it wrong based on the plaintiff's sex, and (2) the selective enforcement claim, where the university initiates disciplinary proceedings against the plaintiff because of sex or disciplined him more severely because of his sex. 

On the erroneous outcome claim, Judge Sack writes that plaintiff cannot meet the minimal prima facie hurdle because, while the Court accepts plaintiff's claim that the university got it wrong on the Doe allegation, the wrong outcome does not necessarily mean it was reached because of gender bias. Under the Iqbal/Twonbly pleading standards the Supreme Court adopted in 2009, the Second Circuit holds that "we cannot turn a blind eye to an 'obvious alternative explanation' for alleged facts that undermine a plaintiff's theory of liability," that is, that "SJU accepted [Plaintiff's] concession that he engaged in sexual contact with Doe but did not credit his assertion that Doe initiated the contact." 

In addition, even if the proceedings against plaintiff proceeded in a "less-than-flawless manner," involving some procedural irregularities, that does not mean the university practiced sex discrimination in ruling against plaintiff. The Court cites a First Circuit case in stating that "even allegations of 'potential serious flaws' in a Title IX plaintiff's disciplinary proceedings may fail to allege 'sufficient facts to support a plausible inference that the irregularities are attributable to sex bias.'" In other words, procedural errors are not always enough, even in a Rule 12 posture. While plaintiff says the wrong result against him is evidence of gender bias, the Court of Appeals disagrees, as a flawed proceeding that led to the wrong result combined with a conclusory allegation of gender bias is not enough to survive a motion to dismiss.

As for the selective enforcement claim, while plaintiff claims SJU treated plaintiff differently than Doe, who had harassed and defamed him in an anonymous tweet, the Court of Appeals finds that plaintiff and Doe were not similarly-situated, as Doe's misconduct is far less serious than what SJU claims plaintiff did. 

What about Mary Smith's allegation against plaintiff? He claims that SJU ruled against him on that complaint because of his sex, but the Court of Appeals again finds plaintiff has not pled a plausible claim under Rule 12. Here again, the Court emphasizes that any procedural irregularities against plaintiff in the Smith proceeding are not enough to assert a Title IX violation. Plaintiffs must plead "clear" procedural irregularities, and he does not plead enough facts to assert that the University ruled against him as a means to avoid public criticism that it was not taking sexual misconduct allegations seriously. The Court finds that public pressure is not enough to proceed with this case under Rule 12, and that the plaintiff must also identify clear procedural irregularities by the university in ruling against him. Again, the Court finds no such irregularities.

 I recall a time when procedural irregularities presented plaintiffs with a strong argument that the defendants had discriminated against them. This usually happened in the employment context. Cases do hold that universities have leeway to deviate from their procedures in disciplining students, but the Court seems to be charting a new path, at least under Title IX, that the procedural deviations must be significant in order for the plaintiff to win the case.

A long dissent by Judge Menashi claims the majority has misinterpreted Circuit precedent on these issues and improperly denied plaintiff the opportunity to pursue discovery on his claims. He argues that cases have not limited plaintiffs to the "erroneous outcome" and "selective enforcement" theories of liability, and that there are other ways for aggrieved university students to prove discrimination. Menashi also believes the majority has effectively abandoned the low pleading standard normally afforded to discrimination plaintiffs.

The forceful dissent suggests to me that plaintiff's attorneys will seen en banc review on these issues, where all the Circuit judges re-hear the case. Reading all the opinions here, it looks like the state of the law in the Second Circuit on Title IX discrimination is in flux. The Court of Appeals is normally loathe to hear cases en banc, but I have a feeling this case will reach the full court.