Tuesday, October 13, 2015

Two More Disciplined Student Suits Dismissed

We've been carefully tracking the efforts of students who are disciplined for sexual assault to use Title IX and other law to challenge their university's disciplinary hearing process and result. Here are two more cases to add to the file.

In the first case, a male student was expelled from the University of Missouri after a disciplinary hearing found him responsible for "nonconsensual sexual contact" and other violations of the code of conduct.  Prior to the hearing, the student fired the attorney he had initially hired to assist him in the process, and the university accommodated his first request to postpone the hearing to allow him to seek a replacement. But the university denied the student's second request, made on the day of the hearing, to postpone yet again.  The student then opted not to participate in the hearing.

The student sued the university, alleging that it had discriminated against him on the basis of sex in violation of Title IX, but the court dismissed this claim after determining he had "unquestionably failed" to allege any facts that suggested gender bias on the part of university officials. His argument appeared to have been that the complainant in his case (and complainants in general), are treated more favorably than he was (and respondents in general). Yet, in addition to vagueness, this argument failed for not being targeted at sex discrimination. As the court noted, "[e]ven if the University treated the female student more favorably than the Plaintiff, during the disciplinary process, 'the mere fact that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of Plaintiff's sex.'"  Nor is "demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators... the equivalent of demonstrating bias against male students." The court also dismissed the plaintiff's due process claim, noting that the plaintiff "was afforded adequate procedural rights by Defendants by way of notice of the charges, identification of the violations charged, and an opportunity to present his case even though he refused to participate."  All other claims in the plaintiffs' complaint were similarly dismissed.

In the second case, a male student was accused of rape by a female classmate at Augustana University in South Dakota.  The university suspended him while it conducted its investigation and hearing process.  The student asked the university to postpone its hearing until the criminal charges he was also facing had been resolved, but the university refused. So the student sued, seeking a preliminary injunction that would force the university to wait to pursue disciplinary action.  But last week the federal court in South Dakota refused to grant the injunction after determining that the plaintiff did not have a "likelihood of success on the merits," which is the key inquiry in  preliminary injunction cases.  The court predicted that his Title IX claims would fail because the plaintiff did not allege an erroneous outcome, as his claims lacked both an "outcome" (because the hearing hasn't happened yet) and specific allegations of gender bias. Like the case discussed above, the court refused to consider arguments about favoritism to complainants as tantamount to discrimination because of sex.  And while the plaintiff alleged that the university's procedures "in practice" only apply to males, the court read this as a disparate impact claim which is not actionable under Title IX. 

The court also predicted that the plaintiff would lose on the merits of his due process claim, because Augustana University is private and not a state actor, as well as his breach of contract claim.  Related to his contract theory, the plaintiff alleged that the university breached its obligation of "good faith and fair dealing" by imposing on him the dilemma that he faces: participate in the disciplinary hearing (and possibly incriminate himself in ways that could be used against him in the criminal matter) or not participate in the disciplinary hearing (and forego the opportunity to defend himself).  The court acknowledged the dilemma, but did not find it to be bad faith on the university's part. As the court has denied the motion for injunction, the plaintiff will now have to choose between participating in the hearing and avoiding the risk of incriminating himself.

Salau v. Denton,  2015 WL 5885641 (W.D. Mo. Oct. 8, 2015).
Tsuruta v. Augustana University, 2015  WL 5838602 (D.S.D. Oct. 7, 2015).