Another Disciplined Student's Title IX Case Dismissed

I recently posted a round-up of disciplined-student cases in which courts rejected Title IX claims filed against universities by students accused and sanctioned for sexual assault.  Today there is another to add to that list. A male student sued the University of Massachusetts-Amherst challenging his expulsion for sexual assault.  He claims that the the sexual encounter he had with the complainant was consensual, but the Student Conduct Hearing Board determined that she was incapacitated by alcohol and did not consent, a finding -- along with the a sanction of suspension -- upheld on appeal.  The plaintiff alleges that the procedures employed by the university were unfair.  As the court put it,

Plaintiff points to difficulties getting information, deficiencies in the investigation, limits placed on his ability to cross-examine witnesses, the exclusion of some documentary evidence he wished to introduce, and the misuse of witness testimony by the hearing board. He also asserts the student member of the hearing board had a conflict due to an earlier internship within a criminal prosecutor's office. 

But, even though the court acknowledged that these allegation would be sufficient to raise questions about whether the outcome of his proceeding had been correct, the court found lacking any allegation that these procedural errors had occurred because of the plaintiff's sex.  Disparate treatment because of one's status as a student accused of assault is not the same thing as disparate treatment because of sex.  Nor did the plaintiff allege facts that could result in a Title IX violation based on selective enforcement, which occurs when a university sanctions members of one sex more harshly than the other for similar misconduct. 

The plaintiff had also attempted to bring state law claims (unspecified, but presumably breach of contract) but the court rejected them on grounds that the 11th Amendment protects states (including state universities) from being sued without their consent.

The plaintiff also apparently tried to argue in opposition to the university's motion to dismiss that his constitution right to due process had been violated.  But because the plaintiff had not included this claim in his original complaint, the court could not consider those arguments later in the case.  I was recently asked by a reporter why plaintiffs in disciplined-student cases continue to make Title IX arguments even when they are largely unsuccessful, and I said I suspect there is some attraction to that theory on a symbolic level.  It might be extra-satisfying for them to use the same weapon against the university that had resulted in their expulsion in the first place. But this attraction to Title IX seems to be harming disciplined-student plaintiffs who might have valid claims under other sources of law. If this plaintiff had not been so enamored of using a reverse discrimination argument, perhaps due process would not have been an afterthought?

Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521 (D. Mass. July 14, 2015).