A student who was suspended for sexual assaulting another student sued the University of Cincinnati alleging that the disciplinary decision violated Title IX and his constitutional rights to due process. Though the student initially prevailed in motion for a preliminary injunction, the court has now concluded that allegations of gender bias and unconstitutional process are not sufficient to sustain his case. First, the court rejected that the plaintiff's allegations bias constitute constitutional violations. The university's professed sensitivity to the needs of sexual assault victims, for example, does not establish that anyone prejudged the outcome of this particular case. Nor do general allegations that the university was under pressure to comply with the now-rescinded 2011 Dear Colleague Letter. Finally, in response to the plaintiff's allegations that the Title IX coordinators affiliation with an organization that promotes a victim-centered response, the court quoted the Sixth Circuit, for the point that "merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased." The plaintiff's Title IX claim fared no better, as it too lacked the requisite allegation of bias on the basis of sex. The plaintiff attempted to base his bias allegation on the fact that the university was being investigated by OCR for its sexual assault response. Thus, he asserts, the university would have been under pressure to make an example of him. Yet, the court reasoned, no allegation claims that any of the university officials involved in his case were even aware of the OCR investigation, let alone were influenced by it. Additionally, the court rejected the claim that media and advocacy pressure to "crack down" on campus sexual assaults and address "rape culture" were sufficient articulations of gender bias, since they do not establish that the university faced pressure for how it conducted disciplinary procedures, rather than in general its sensitivity and response to rape. Doe v. Univ. of Cincinnati, 2018 WL 1521631 (S.D. Ohio Mar. 28, 2018)
In another recent decision, however, a court concluded that the plaintiff's allegation of gender bias was sufficient and that he could continue to litigate his claim that the university's decision to suspend him for sexual assault violated Title IX:
One
plausible inference from plaintiff's allegations is that the
University, in an attempt to change historical patterns of giving little
credence to sexual assault allegations, has adopted a presumption that
purported victims of sexual misconduct are telling the truth. Indeed,
that may well be the most plausible inference at this stage. To
the extent that discovery shows that any bias against plaintiff stemmed
from a purely “pro-victim” orientation, that bias did not violate Title IX or the Equal Protection Clause. But another plausible
inference from the complaint is that the University was predisposed to
believe Roe because she is a woman and disbelieve plaintiff because he is a man.
That inference could be supported by, among other things, evidence that
when the accused is a woman and/or when the accuser is a man, the
University conducts sexual misconduct investigations and adjudications
differently than it did in this case. Such evidence is, of course,
practically unavailable to plaintiff without the tools of discovery.
Because the allegations in the complaint support a plausible inference
of gender bias, Defendants' motion to dismiss Plaintiff's Title IX and Equal Protection claims is denied.
Doe v. University of Oregon, 2018 WL 1474531 (D. Or. Mar. 26, 2018)
Yet, a third recent decision granted a university's motion to dismiss a disciplined-student's Title IX claim based on the insufficiently of his allegations of gender bias. The court did not accept that OCR's promulgation of the 2011 Dear Colleague Letter put pressure on the university to discriminate against men. Or even, as the court pointed out, that the university made changes to its disciplinary process in response. Doe v. University of Dayton, 2018 WL 1393894 (S.D. Ohio Mar. 20, 2018).
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