Insufficient Allegations of Bias Result in Dismissal of Title IX Claim Against University of Colorado

One of the most contentious legal issues in disciplined-student cases under Title IX is what level of detail the plaintiff needs to include in the complaint in order to avoid having the claim dismissed at the outset of litigation, prior to either discovery or trial. Many male students who have sued to overturn expulsion or suspension for sexual assault include a sort of reverse-discrimination argument; i.e., that the institution violated Title IX because it was motivated to punish them because of their sex.

Courts will dismiss any complaint that does not include enough detail to put the defendant on notice of what, exactly, they are being sued for; yet at the same time, because the law permits defendants to file motions to dismiss early in the litigation process, courts also try not to punish a plaintiff for not having the information they haven't yet had the opportunity to discover. In civil rights cases generally, it is challenging for courts to consistently draw this line, and Title IX claims in disciplined-student cases seem to be particularly challenging. Courts tend to agree on the language they use to describe the pleading standard ("minimally plausible inference" " no "conclusory allegations"), but not necessarily on what that standard means in practice.

In a recent district court decision, a federal judge in Colorado dismissed a disciplined-student's Title IX claim after concluding that his allegations of bias did not meet the pleading standard. Specifically, the plaintiff alleged that university officials involved in his disciplinary proceeding were biased against his sex because:
* the Title IX coordinator and the person who investigated his case were both women
* the investigator had a background in victim's advocacy
* an article in the Chronicle of Higher Education once attributed a statement to the investigator that used the word 'perpetrator' --as in, "the process is designed to expel or suspend perpetrators" which the plaintiff claimed was evidence of her bias that everyone accused of assault is guilty.
* the fact that the university was under investigation already by the Department of Education for mishandling sexual assault, which the plaintiff alleged created external pressure to rush to judgment in his case.
* a pattern that respondents in sexual assault cases tend to be male.

None of these allegations created a minimally plausible inference of gender bias, ruled the court. The first three were rejected for what I suggest are non-controversial reasons. Bias can not be inferred from someone's sex or previous work experience.  Using the word "perpetrator" alongside "expelled" (which, the court noted, wasn't even a direct quote and could have been the reporter's word rather than the investigator's) in no way suggests that those who have not in fact perpetrated sexual assault should also be expelled.

The court's rejection of the last two allegations, however, illustrates the division among federal courts.This court interpreted the plaintiff's "external pressure to rush to judgment" argument as, at most, creating an inference of bias against those accused of sexual assault, which is different from bias against men. Even though men are more likely to be respondents, the court reasoned, it is not the university's decision to place them in that category, it is students themselves who do so. It is plausible that a university would have been just as motivated to disciplined a student for sexual assault if a female student had been the one accused. Yet, other courts have been willing to except the "external pressure" allegation as well as other allegations that equate bias against those accused of sexual assault with bias against men.

This decision contributes to what appears to be an emerging patchwork of districts and circuits that are more or less favorable to Title IX claims in disciplined-student cases.

Decision: Doe v. University of Colorado-Boulder, 2017 WL 2311209 (D. Colo. May 26, 2017).