Seattle Attorneys Blog
Many recent Title IX cases filed by students accused of sexual assault or sexual misconduct have focused on procedural issues, such as denial of an opportunity to cross-examine the accuser. In some cases, however, the pressures to address allegations and support alleged victims may result in gender bias against accused male students during investigations and in the outcomes of those investigations.
Recently, a federal court in Virginia considered a university’s motion to dismiss part of a former student’s claims against it. In March 2017, the plaintiff engaged in sexual intercourse with a female student, identified in the court’s opinion as Jane Roe. She reported the incident as sexual assault, but the plaintiff alleged the encounter was consensual. He alleged they agreed to meet and walked to his house. He alleged they had sex and fell asleep, and Jane Roe left in the morning.
According to the opinion, Jane Roe later texted the plaintiff and asked what time they had sex. He answered that he “honestly had no idea.” Jane Roe met with the Title IX Coordinator and said she had not consented because she fell asleep and did not remember having intercourse. She filed a Title IX complaint.
The plaintiff met with the Title IX Coordinator and the Associate Dean of Students. He told them that he and Jane Roe had discussed having sex and agreed he should get a condom. He told them Jane Roe was fully aware and actively participated in the encounter.
The investigators talked to two people who had seen Jane Roe that night and both said she did not appear to be intoxicated or unaware of her surroundings.
A psychologist and head of the Student Assault Survivor Support Group reported that Jane Roe was suffering from acute stress disorder. The investigators accepted this report as “medical evidence,” but only informed the plaintiff about it the day before his hearing.
The hearing panel found the plaintiff responsible for nonconsensual sexual penetration by a preponderance of the evidence, concluding Jane Roe was “either asleep or nearly asleep” at the time. They suspended the plaintiff for one term.
The plaintiff received a letter, a Hearing Panel Sanction Form, and a Reinstatement Form. According to the documents, he would be eligible to apply for reinstatement in the Winter 2018 term. To be reinstated, he would have to successfully complete substance and sexual abuse counseling, get an evaluation from his healthcare provider indicating whether his behavioral concerns had been improved to qualify him to return to school, and spend about 40 hours a week “in constructive undertakings…” The letter stated that meeting those minimum requirements did not guarantee he would be reinstated.
The plaintiff applied for reinstatement in November 2017. He submitted evidence of his counseling, his evaluation, employment and volunteer activities, and a personal essay. Reinstatement was denied. The letter stated his essay “did not demonstrate [his] readiness to return.” It also suggested full-time in-person coursework or volunteer work related to alcohol or sexual abuse would strengthen a future application.
In July 2018, he submitted another application, which he said better described the nature of his volunteering, his personal growth, and his readiness to return. He claimed it would be difficult for him to attend full-time college courses in person due to his suspension. The university denied his application again, citing the lack of coursework.
The plaintiff filed suit, alleging unlawful gender discrimination, retaliation, breach of implied contract and negligence. The university moved to dismiss the state law breach of contract and negligence claims.
The court rejected his argument it should recognize an implied-in-law contract based on the three documents he received from the university or the university’s acceptance of his tuition. The court noted the documents clearly provided that the university retained full discretion in readmitting the plaintiff. The plaintiff had to apply for readmission, so it was not guaranteed.
The plaintiff argued the university owed him a duty not to suspend him “arbitrarily, capriciously, maliciously, discriminatorily, or otherwise in bad faith” because he had paid tuition. The court found that the university had provided “a deliberative hearing and appeals process…” The court found that any implied terms created through the plaintiff’s payment were satisfied through the process the university provided.
The court also rejected the negligence claim. Virginia law has not recognized a duty of care owed to students in these circumstances, and the federal court would not expand the law to do so.
The court dismissed the state law breach of contract and negligence claims, but the Title IX claims will proceed. In his complaint, the plaintiff alleged the university was facing an investigation by the Department of Education, Office of Civil Rights (OCR) regarding its handling of sexual assault complaints, and this led to a gender bias in its response to the allegations against him. He claimed the Title IX personnel were influenced by institutional pressures from the OCR investigation, OCR’s guidance, other government actions, and a campus environment to support survivors. He also alleged the university was motivated by a desire to retaliate against him in asserting his Title IX rights when his attorney requested the investigative report and his student file after the hearing. This case does not allege the same kind of due process issues based on university policies and procedures in handling investigations. Instead, it alleges that gender bias influenced the investigation and the outcome. It will be interesting to see the outcome of the Title IX claims.
Universities face immense pressure to address sexual assault and support those who report it. In some cases, this may result in a disciplinary process that is biased against the accused student. If you have been accused of a Title IX violation or other misconduct, an experienced Washington Title IX defense attorney can advocate for you throughout the investigation, disciplinary proceedings, and any further actions. Call Blair & Kim, PLLC, at (206) 622-6562.