Expelled Student's Case Against Xavier Survives Motion to Dismiss

A male basketball player who sued Xavier University after he was expelled for sexual assault prevailed recently in a preliminary ruling when a federal district court denied Xavier's motion to dismiss his Title IX claim.  Dezmine Wells, whose case we have blogged about before,  alleges that he was expelled based on false accusation of rape by his female resident advisor.  He claims that the university failed to conduct a fair and adequate hearing because it had recently been under investigation by the OCR for two other cases in which the university failed to adequately respond to female students' charges of sexual assault, and is presently bound by a resolution agreement with the agency to improve its policies and procedures for handling such cases.  Wells believes that, as a result of this negative attention, Xavier used him as a "scapegoat" to distance itself from its earlier lapses. 

The court determined that Wells's allegations under Title IX were adequate to allow his case to proceed to the discovery phase.  In key part, the opinion reads:

Plaintiff's Complaint puts Defendants on adequate notice that he contends they have had a pattern of decision-making that has ultimately resulted in an alleged false outcome that he was guilty of rape. Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen. His Complaint, however, recounts Defendants having rushed to judgment, having failed to train [] members [of the disciplinary hearing board], having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.

The court also allowed Wells's case to proceed on a second Title IX  theory: that the university violated Wells's rights under Title IX because it was "deliberately indifferent" to the defects in his hearing, about which the university had actual notice. Regardless of what the facts in this case turn out to be, this aspect of Wells's claim is, in my opinion, based on a misinterpretation of Title IX case law. The actual notice/deliberate indifferent test is the test courts use for institutional liability when the underlying discrimination is not caused directly by the institution.  It is only properly used in cases where the plaintiff has been the victim of harassment and assault at the hands of a student, employee, or some other relevant third party, and alleges that the university should have but didn't intervene. It is confusing and unnecessary to use a deliberate indifference theory in a case like this one, where the alleged discrimination was committed directly by the university.

The court also refused to dismiss Wells's claim of libel at this preliminary stage.

Wells v. Xavier Univ., 2014 WL 972172 (S.D. Ohio Mar. 12, 2014).