University student loses sex-discipline gender discrimination appeal

This plaintiff sues New York University for sex discrimination under Title IX, claiming he was unfairly disciplined over a sexual allegation because of his gender. The case was dismissed at the district court, and the Court of Appeals affirms, ending the case.

The case is Doe v. New York University, a summary order issued on November 20. You can sue universities for such discrimination under Title IX, but the courts will not allow the case to proceed without specific allegations demonstrating gender bias. Plaintiff cannot survive summary judgment in this case.

In his effort to prove gender bias, plaintiff relies on a spreadsheet showing NYU's disciplinary outcomes in sexual-misconduct proceedings, broken down by the respondent student's gender. As the Court of Appeals (Newman, Cabranes and Perez) writes, "Doe notes that NYU expelled four male and no female students during the 2015/16 through 2019/20 academic years. Female students, he notes, received only probation or suspension." Is this male/female disparate treatment enough to show that plaintiff himself was discriminated against because of his gender?

It is not enough, the Court of Appeals holds. "For data such as these to establish a genuine factual dispute, they must be sufficiently detailed to allow a jury to find that the comparators were similarly situated to the plaintiff in relevant respects, permitting a reasonable inference that a disparity in their treatment was due to gender bias." Authority for that proposition is found in Radwan v. Manuel, 55 F.4th 101 (2d Cir., 2022). But plaintiff cannot satisfy that test. The Court writes:

The spreadsheet to which Doe points us lacks that detail.  It indicates only the broad categories of misconduct that each female student was found to have committed: “Relationship Violence” for two students; “Sexual Harassment” for one; and “Stalking and Sexual Exploitation” for another. By contrast, Doe was found responsible for stalking, sexual harassment, sexual exploitation, and repeatedly violating a no-contact directive. Even drawing every permissible inference in Doe’s favor, a jury could not reasonably infer from this spreadsheet alone that NYU discriminated against him based on his gender.