Two Recent Summary Judgment Decisions in Disciplined-Student Cases

When a university is sued by a student who has been disciplined for sexual misconduct, it will typically file a motion to dismiss, arguing that the allegations in the plaintiff's complaint -- even if true -- are not legally sufficient to sustain a claim under Title IX or whatever source of law the plaintiff is alleging to have been violated. If the university wins on this early-stage motion, the case goes away before it ever really gets off the ground. But if the university's motion does not succeed, the plaintiff has the opportunity to take discovery: to gather evidence that it will use to support the allegations in the complaint when the case gets to trial. This includes taking depositions of university officials and requesting documents from them as well. At the close of discovery, the university can again seek to have the case thrown out -- this time, on a motion for summary judgment -- but the discovery process itself can be enough of a hassle that universities will chose to settle before the case gets this far.  That is why the volume of decisions on motions to dismiss is so much higher than decisions on motions for summary judgment.  When summary judgment decisions come out, this blogger takes notice!  Here are two recent ones: one where the university loses, and one where the uni
university wins.

Rossley v. Drake University (university loses). Drake University in Iowa moved for summary judgment to end litigation over a former student's claim that the university violated Title IX when it expelled him for sexual misconduct. The district court granted summary judgment on the plaintiff's erroneous outcome claim, rejecting all of plaintiff's arguments that university officers were biased against him because of his sex. The mere fact that the university found against him, a male, is not evidence of gender bias. Though some courts have said that a disciplinary decision that goes against the weight of the evidence can be a plausible basis for an allegation of gender bias, summary judgment is where the plaintiff must stop alleging and start proving. The court also rejected the notion that a university's use of "victim-centered" or "trauma-informed" process is per se gender biased, when such university uses gender neutral language in its policies. Additionally, the court rejected the idea that the 2011 Dear Colleague Letter served as evidence of gender bias, since there is no evidence that the letter motivated university officials to react in ways that were biased against male students.

However, the court denied Drake's motion for summary judgment on the plaintiff's Title IX claim based on selective enforcement.  In this case, the plaintiff alleged that the university deployed its investigatory and disciplinary process in response to the complainant's allegations against him, they failed to the same in response to his allegations against her. The court affirmed that if the plaintiff and his accuser were similarly situated in their respective allegations, than the different treatment they received would violate Title IX. However, there are disputed facts about whether the plaintiff and the accuser were similarly situated, thus precluding a summary judgment decision and necessitating fact-finding by the jury. He did not file a formal complaint against her, which could explain why they didn't take his allegations seriously, except that he alleges university officials dissuaded him from filing a complaint. To get to the bottom of these disputed facts, the jury needs to hear the relevant testimony and decide for itself whether the university treated his allegations less seriously than hers despite their material similarity.

Ayala v. Butler University.  Butler University, on the other hand, won summary judgment of Title IX (and other) claims filed by a student challenging his expulsion for sexual misconduct. Though the male plaintiff argued that the university's process was tainted by gender bias, the court found nothing in evidence that could convince a juror of that. The investigator's "persistent questions... about verbal consent" at most suggest bias towards victims, not bias towards women or against men. And evidence that Butler treated a male respondent in another case with a lesser sanction doesn't suggest any kind of pattern of treating male respondents differently because of their sex. The court easily dismissed this plaintiff's case against Butler.

More on the Butler Resolution

I just wanted to write again about OCR's recent resolution with Butler University to draw additional focus on the agreement's provisions regarding scholarships.  As we noted in our earlier post,  women at Butler receive disproportionately fewer athletic opportunities than men, and OCR has required Butler to either justify that under prong three, or else come up with a plan to add more opportunities for women.  At the same time, those women who do enjoy athletic opportunity at Butler receive proportionately more scholarship dollars than men.  This violates the Title IX regulation regarding financial aid, which requires the scholarship dollars to be distributed proportionate to athletes of each sex.  OCR's resolution agreement is asking for remediation on that issue, which means raising (or redistributing) scholarship dollars for men. 

I've heard some concern that this requirement seems to suggest that OCR expects universities who short-change women in the number of athletic opportunities to short-change them with scholarship dollars as well.  Notably,  OCR itself has in the past presented a flexible interpretation of the scholarship requirement that accepts disparities between the percentage of scholarship dollars for each sex and the percentage of athletes of each sex, as long as those disparities are for "nondiscriminatory reasons."  In a 1998 Dear Colleague letter, OCR writes that such "disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements."  I think this interpretation should provide schools like Butler some flexibility to award female athletes proportionately more scholarship dollars as a way of building women's participation.  It will be interesting to see whether OCR takes this flexibility into account when monitoring Butler's ongoing effort to comply with both the participation and scholarship aspects of Title IX.  

Butler University Resolves OCR Compliance Review

The Department of Education announced this week that it has entered into a resolution agreement with Butler University, which had been the subject of a compliance review by the Office for Civil Rights.  A compliance review is different in than the typical investigation that we usually write about here, in that it is initiated by the agency rather than triggered by a complaint.  According to its website, OCR initiates compliance reviews in order to "target resources on compliance problems that appear particularly acute."  I'm guessing that Butler's extreme disparity in proportionality -- a 23 percentage point difference between the percentage of female undergrads (59.5) and the percentage of athletic opportunities for women (36.5) -- is what appeared "particularly acute."  While proportionality is not the only way to measure compliance, such a low percentage of female athletic opportunities certainly raises suspicion about whether sufficient progress is being made to satisfy prong 2, and the likelihood of unmet interest in violation of prong 3.

The resolution agreement requires Butler to demonstrate by Sept. 1 that it is accommodating effectively the interests and abilities of female students. Or, if they are unable to demonstrate that, they must submit a detailed plan to increase athletic participation opportunities for women over the next three academic years.

How often does OCR initiate compliance reviews like this on its own?  According to its 2009 Annual Report to Congress, OCR initiated 1 compliance review related to Title IX athletics issues in FY 2007 and 16 in FY 2008.  This is a pretty small percentage of OCR's Title IX enforcement work, given that it receives hundreds of Title IX complaints every year.  As far as I'm concerned, OCR shouldn't have to do this; universities are already on notice of what Title IX requires, and that includes being able to demonstrate that interests and abilities are being satisfied (unless of course, they satisfy proportionality, as few do).  But until schools like Butler get the message that monitoring Title IX compliance is an active and ongoing endeavor, OCR should be doing more compliance reviews, not less.