3rd Circuit decision supports new Title IX due process standards

Jane Roe 1 and Jane Roe 2 were students in a private college in Pennsylvania along with John Doe.  The two women accused Doe of violating the college’s Sexual Misconduct Policy.  The college investigated, found the accusations credible, and expelled Doe.  Doe had “completed nearly all the coursework required to earn a degree” when he was kicked out of the school.  He sued the college, alleging 1) sex discrimination in violation of Title IX; and 2) breach of contract by the college. 

The federal district court dismissed Doe’s suit, but now the 3rd Circuit has reinstated it.  In doing so, the court adds judicial support to the due process scheme outlined in the new Title IX regulations that are scheduled to go into effect on August 14, 2020. 

Those regulations were not at issue here, but the process that the college followed was.  The court was ruling on a Motion to Dismiss, which means that it was required to accept Doe’s allegations as true, and draw any reasonable inferences from those facts in favor of Doe. In other words, the court was required to give Doe the benefit of every doubt. This standard practice in our federal courts is designed to make sure that cases are not dismissed hastily, but only when it is clear that they have no chance of success.

Doe alleged that the college “succumbed to pressure from the federal government” to “institute solutions to sexual violence against women that abrogate the civil rights of men and treat men differently than women.”  He also asserted that the college investigated him but ignored his charges that three women, including both of the Jane Roes, violated the Sexual Misconduct Policy.  The court concluded that Doe may be on to something:

And when Doe’s allegations about selective investigation and enforcement are combined with his allegations related to pressure applied by the 2011 Dear Colleague Letter, we conclude that he states a plausible claim of sex discrimination.

The court also found plausibility in the breach of contract claim.  Such a claim by a student can only be made in a school where tuition is paid in exchange for education.  That can be considered a contract.  In the free public schools, the contract theory does not wash.  Here the court found that the contract promised students a process that would be “adequate, reliable, impartial, prompt, fair and equitable.”  The court held that the process the college used fell short of that standard.  Key Quotes:

…the basic elements of federal procedural fairness in a Title IX sexual-misconduct proceeding include a real, meaningful hearing and, when credibility determinations are at issue, the opportunity for cross-examination of witnesses. 

We hold that [the college’s] contractual promise of “fair” and “equitable” treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers.

That’s exactly the level of due process the new Title IX regs call for at the postsecondary level.  K-12 schools are not required to hold a live hearing, but they are required to offer a process that treats boys and girls equally, regardless of who is the accuser and whom the accused.

The case is Doe v. University of the Sciences, decided by the 3rd Circuit on May 29, 2020.  We found it at 2020 WL 2786840.


Tomorrow: FERPA.