Professor's Title IX Claim Against Northwestern Dismissed

A federal court in Illinois recently gave two reasons for dismissing Professor Peter Ludlow's Title IX claims against Northwestern University, arising from its decision to investigate charges by a graduate student that Ludlow had had nonconsensual sex with her during a period of time in which they were dating (the court's characterization).

First, the court determined that Ludlow was actually challenging an adverse employment action, and, as such, his Title IX claim was preempted by Title VII, the federal employment discrimination statute. The issue of Title VII preemption is not handled consistently by the courts, but there is precedent in the Seventh Circuit -- binding on the federal courts in Illinois -- that withholds Title IX remedies in cases where employees allege sex discrimination by their employer, reasoning that Congress intended the mechanisms of Title VII enforcement (which include first seeking relief from the EEOC) to apply instead.

Second, the court reasoned that even if the Title IX claims were not preempted, Ludlow had not alleged facts that suggest that the university's response in investigating the graduate student's claim had anything to do with his male sex, but instead, because the charge against him was rape. As the court put it, "That Ludlow is male is a conclusion without any link to the investigation itself and his statement that Northwestern 'needed to believe the victim' does not sustain the inference that Northwestern took the genders of the victim and accused into account."  Nor could Ludlow sustain a sex discrimination claim by arguing that men are more often burdened rather than helped by victim-friendly procedures, since there is no private right of action for disparate impact claims under Title IX.  In this way the court's decision is very similar to the majority of Title IX decisions in disciplined-student cases, such as the case against Columbia which is cited a number of times in the opinion.

After dismissing Ludlow's Title IX claim, the federal court determined that it had no basis for exercising supplemental jurisdiction over his state law claims, and subsequently dismissed those as well.

Ludlow v. Northwestern Univ., 2015 WL 5116867 (N.D. Ill. Aug. 28, 2015).

Campus Sexual Harassment, Sexual Assault Litigation Roundup

In two recent judicial decisions, courts refused to grant university's motions to dismiss Title IX cases in which the plaintiff alleged that the university did not adequately respond to his or her report of sexual harassment or assault.

• In the first case, a federal court in Illinois allowed a male medical student to continue to litigate his case against Northwestern University, in which he alleges that the university did not adequately respond to his report of sexual harassment by a male professor.  The professor, the plaintiff alleges, made suggestive comments and retaliated against the plaintiff in various ways for refusing his sexual advances. The court agreed that the allegations in the plaintiff's complaint satisfy the legal standard for liability under Title IX, and thus cannot be dismissed without continued litigation.  The plaintiff alleges a sexist double standard in Northwestern's policy of not investigating reports of incidents that were two years old, the time frame that lapsed between the professor's misconduct and the plaintiff's report to the university's sexual harassment office. Because the plaintiff's complaint included an example of a female complainant's case that was investigated even though the harassment was similarly out of date,  it could, if proven, subject Northwestern to liability under Title IX. The court also denied the university's motion to dismiss the plaintiff's retaliation claim, in which he alleged that the university continued to take adverse action against him after and because of his reporting of the professor's harassment.  Yap v. Northwestern Univ., 2015 WL 4692492 (N.D. Ill. Aug. 6, 2015).

• Similarly, a federal court in Florida denied Florida State's motion to dismiss the Title IX case filed by  Erica Kinsman, who alleges that the university did not adequately respond to knowledge of her report that quarterback Jameis Winston raped her in 2012.  Though FSU disputes the allegations in the complaint, the judge ruled that it is possible that a jury could find truth in Kinsman's claims that appropriate university officials had actual notice of Kinsman's report by January of 2013, and that they did not initiate an investigation for eleven months, which would satisfy the standard of institutional liability under Title IX.  The judge set a trial date for July of 2016, though it is possible of course that the case could settle before then, or that FSU could file and prevail on a motion for summary judgment after the discovery phase which allows the parties to gather evidence. 

Also, there were developments in three disciplined-student cases worth noting.

• A federal court in Virginia denied Washington and Lee University's motion to dismiss a male student's claim that the university violated Title IX when it expelled him for sexual assault.  The court agreed that the plaintiff's complaint contained sufficient allegations that would, if proven, constitute a violation of Title IX under the "erroneous outcome" framework.  At this early stage of litigation, a plaintiff in an erroneous outcome case must (1) cast doubt on the accuracy of the university's finding against him; and (2) allege specific facts that can establish gender bias as a motive. Here, the plaintiff alleged numerous procedural violations that resulted in evidence favorable to him being excluded from the disciplinary panel's consideration. He also alleged that gender bias could be attributed to the Title IX officer who presented the case against him, as evidenced by her public endorsement of the idea that "sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express."  Because the plaintiff's case "parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct" and because the Title IX officer wielded "considerable influence" in the proceedings, it is possible, the judge reasoned, for a jury to find evidence of gender bias.  This is a rare outcome in that disciplined-students' Title IX claims do not usually survive the university's motion to dismiss -- usually because of insufficient allegations of gender bias. Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015).

• And, a state court judge in Tennessee reversed a decision by the University of Tennessee at Chattanooga to expel a male student and wrestler Corey Mock for sexual assault.  In that case, a female student reported to the university that Mock had had sex with her while she was unconscious.  A disciplinary panel initially determined that there was not enough evidence to find Mock responsible, but this decision was overturned on an appeal within the university.  The court took issue with the university's ultimate decision, which it interpreted as requiring Mock to prove he had obtained consent rather than requiring the complainant to prove he hadn't. Though the court's decision was based on state administrative law, not Title IX, the outcome is consistent with what is required of universities under Title IX.  Even though a complainant does not have to have overwhelming evidence (only a preponderance) that consent did not occur, it is still the complainant's burden to prove that consent did not occur.  

• A superior court judge in Los Angeles reinstated plaintiff Bryce Dixon to the University of Southern California while his case against the university is pending.  Dixon, a football player, is challenging the university's decision to expel him for sexual assault stemming from a sexual encounter with a female trainer that he claims was preceded by implied consent, though a university disciplinary panel found otherwise.

Complaint Against Northwestern Professor Does Not Pit Title IX Against Academic Freedom

Back in February, Northwestern professor Laura Kipnis wrote an essay in the Chronicle of Higher Education critical of (to borrow from her title) "sexual paranoia" on college campuses. One of the essay's main targets was what Kipnis describes as a lawsuit filed by a student against a professor charging that he had sexually assaulted her in the context of a dating relationship. Recently, Kipnis wrote a second essay (subscription required) detailing what happened to her in the aftermath of the first. Students reacted negatively to her first essay, and in addition to protesting its content, two graduate students also filed an internal complaint alleging that the essay was retaliation against the student who had filed the lawsuit and would deter other students from reporting sexual harassment against professors in the future. The focus of Kipnis's second essay was the obscure and lengthy process that the university used to investigate the complaint against her. Apparently, university officials were reluctant to reveal the charges against her, hired an outside law firm to conduct the investigation and adjudicate the complaint, buried information about the process in a labyrinth of web links, and took longer than the OCR-prescribed timeframe of 60 days to resolve the matter. In fact, at the time of Kipnis's second essay, the university had not yet reached a resolution of the case; though it has since found in Kipnis's favor and cleared her of all charges of wrongdoing.

Kipnis's essay has generated concern (see, e.g.) about the threat Title IX poses to professors' academic freedom. My view is that it is unfair to indict Title IX based on what happened to Kipnis. I think her criticism of the university's procedure for investigating the complaint against her is a reasonable one. Importantly, however, none of the ways in which the university obscured, outsourced, and prolonged the investigation process are requirements of Title IX. Northwestern could have dealt with the complaint against Kipnis in a more transparent, evenhanded, and efficient way without any risk of violating Title IX. Thus, there is no basis for predicting that universities motivated by Title IX compliance obligations would utilize similar procedures to evaluate charges against a professor stemming from an exercise of academic freedom.

Secondly, while I don't have access to the university's reasoning for dismissing the complaint against Kipnis, this outcome is entirely consistent with the law of retaliation more generally, and illustrates why it would be difficult for a student to ever prevail in a retaliation claim based on professor's written publication. Retaliation generally consists of adverse action targeting a person who engaged in protected conduct as punishment for that conduct. For words alone (i.e., without an associated tangible act) to constitute an adverse action against the person engaged in protected conduct, it would have to rise to the level of retaliatory harassment. Harassment requires the conduct that is severe or pervasive, and a single written essay, especially one that comments on a matter of public concern and public record, is neither. Moreover, the retaliation charges against Kipnis contained a mismatch between the person who had engaged in protected conduct (the student who filed the lawsuit against the professor) and the person(s) adversely affected by Kipnis's essay (i.e., the entire student body whose motivation to challenge harassment was arguably "chilled.").  For these reasons, there is little risk that professors would ever actually be found liable for retaliation based solely on the fact of a publication expressing academic freedom, and there is little grounds on which to generalize Title IX as a threat to that freedom.  

Northwestern Professor's Title IX and Defamation Suits Dismissed

Earlier this month, a federal district court in Illinois dismissed claims filed by a Northwestern philosophy professor against Northwestern and a student who had accused him of sexual assault. 
The court dismissed Ludlow's Title IX claims against Northwestern after concluding that he had not sufficiently alleged discriminatory motive. Ludlow's complaint criticized the procedure by which the university conducted the investigation of the graduate student's complaint that he had sexually assaulted her in the context of an otherwise-consensual romantic relationship. He also challenged the university's conclusion--having found insufficient evidence to substantiate the graduate student's allegations--that Ludlow was guilty of capitalizing on an equal power dynamic, on the grounds that Northwestern had no policy against such relationships.  Yet, the court refused to infer from the fact of these allegations alone that Northwestern could have violated the professor's rights under Title IX, since the complaint contained no allegation that Northwestern officials were motivated by bias against Ludlow on the basis of sex.

The court also dismissed Ludlow's claims that the graduate student had defamed him when she directed her complaint against Ludlow to Northwestern's general counsel. Defamation is a tort that renders a defendant liable for making false statements against the plaintiff.  However, some statements are subject to a qualified privilege, meaning that the defendant cannot be liable for them, even if they prove false, unless the plaintiff shows that the defendant was acting maliciously when making the statement. The court determined that the graduate student's statement is subject to the qualified privilege because it is a statement made to an employer about alleged employee misconduct. The court recognized that the privilege is justified by the strong public interest in having misconduct reported. Accordingly, the court examined Ludlow's complaint against the graduate for evidence of malicious intent.  However, all Ludlow alleged was that her statement was untrue, and the court refused to infer malice from that alone.

(The court also dismissed a second charge against the graduate student for invading his privacy by presenting him in a false light, because the situation did warrant making an exception to the requirement that a false light claim involve the "public presentation" of private matters--a requirement not satisfied by the graduate student's communication with the university counsel.) 

When we blogged about this case while it was pending, we noted concern for the possibility that defamation lawsuits could potentially have a chilling effect on valid reports of sexual assault. The court's decision appropriately addresses that concern by recognizing the privilege afforded to statements made in the context of such complaints. While a person who makes a false report of sexual assault for malicious reasons like retaliation or spite can still be held accountable, the law does not impose liability every time a sexual assault report does not prove true. This limitation provides important protection for erstwhile whistleblowers, who may actually be telling the truth, yet fear the possibility of not being able to marshal enough evidence to support their claim, as well as in cases where the accuser turns out to be mistaken because of memory lapse or trauma.  In such cases, the accusation will not stand, but nor will it give rise to liability on the accuser's part.

Decision: Ludlow v. Northwestern Univ., 2015 WL 508431 (N.D. Ill., Feb. 5, 2015).

Court asked to reconsider NU lawsuit

The student whose lawsuit against Northwestern University was dismissed last month has asked the court to reconsider or vacate its decision based on new evidence. The initial dismissal was due to a lack of evidence that NU showed deliberate indifference in responding to the student's report of sexual assault by her philosophy professor.

The motion includes statements from the report of the investigation conducted by the Title IX coordinator. The writer herself expressed concern that the professor's behavior might be a pattern in which he uses his power as a professor to gain sexual and/or romantic access to female students. There are other statements from faculty members expressing no surprise at the allegations against Professor Peter Ludlow given his tendency to date former students. And there is documentation that Ludlow's department chair approached him several years ago about potentially inappropriate relationships with graduate students. (Ludlow has a defamation lawsuit pending against a graduate student who filed a complaint alleging a non-consensual sexual encounter. The first link above is to Erin's post about the many legal actions around this case.)

The student's motion also states that she continues to be a victim of retaliation by the university. This claim, which was also made in the initial lawsuit, was dismissed. She is reporting new retaliatory actions. 

In short, the legal drama continues with apparently none of it yet resolved.

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.  

Recent cases of convenient equality

With the state of amateurism in college sports under threat (i.e., the lawsuits by current and former college athletes seeking various kinds of compensation for their efforts), policymakers and keepers are somewhat panicked about what this could cost.
The NCAA, of course, has been putting considerable efforts into countering claims that student athletes are anything but students.
Earlier this month, Republican Senators Lamar Alexander and Richard Burr helped them out by invoking a gender equality discourse to claim that it would be impossible to pay student athletes like they were employees--a fear that has been amplified with the National Labor Relations Board ruling that the football players (scholarship only) at Northwestern University do meet the definition of employees and thus could unionize.
"What is going to happen to the smaller schools? What is going to happen to the minor sports? What is going to happen to the Title IX women's sports if, for some reason, a union forces universities to have a much more expensive athletic program for a few sports?" Alexander said on the Senate floor.
First of all, there are  no "Title IX women's sports"--that's not a thing.  
Second, once again we have the ever-so-unhelpful football/basketball versus everyone else binary with Title IX as the perceived divider. Except this time Title IX is being invoked in a positive way by people who are not women's sports advocates or feminists. How long will the Title IX love last? Until the next attempt to weaken the law and make it more amenable to schools that would like to funnel more resources into major sports and not have to balance this with the needs of female student athletes?

Next, last week, Judge Claudia Wilken, a US District judge, made a significant ruling in the now five-year long case initially brought by former UCLA basketball player Ed O'Bannon (now a class-action lawsuit) in which the plaintiffs are seeking an end to the NCAA's rule that student athletes cannot make money off of their likeness, image, and name. Judge Wilken ruled on the summary judgment requests of both the NCAA and the plaintiffs (she granted it to neither, the trial should begin in early June) but said that the NCAA could not present as an argument that paying athletes (which the NCAA argues is part of the end of amateurism that would come with athletes who make money from their status) would harm women's sports.
It was a win for the plaintiffs. And it's a little bit of equality karma.
From the Courthouse News Service:
 The NCAA could support women's sports and less prominent men's sports in other, less restrictive ways, Wilken said.
     "For instance, the NCAA could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports," Wilken wrote.
     "The NCAA has not explained why it could not adopt more stringent revenue-sharing rules," the judge wrote, granting the athletes summary judgment on that issue. "The challenged restraint is not justified by the NCAA's claimed desire to support women's sports or less prominent men's sports."

Both of these examples illustrate an unfortunate trend that occurs outside of sports all the time: when it serves the needs of various institutions, fairness and equality for women gets invoked. When fairness and equality are less convenient, less beneficial, more costly the latter is emphasized over the former. The discourse remains inconsistent as do the actions of the fair-weather (which only seems to come when there's something afoul in men's sports) advocates.

What Effect Will the NLRB Decision Have on Title IX?

Yesterday a regional director of the National Labor Relations Board ruled that Northwestern University football players were "employees" within the meaning of the National Labor Relations Act, and, accordingly, have the right to elect a union to engage in collective bargaining on their behalf.  The decision focused on the ways in which football players are subject to the control of the university, which make them unlike other students at Northwestern and similar to employees in other contexts who are subject to their bosses' control.  The decision also examined the job-like time commitment football players make to their sport, and the nature of football players' scholarships, which, awarded entirely on the basis of "football prowess," operate like compensation -- another hallmark of the employer-employee relationship. 

Northwestern reportedly has plans to appeal the decision, which could be overturned if not by the full board of the NLRB, then by the federal courts (including, potentially, the Supreme Court).  If it is upheld, however, it would mean that football players at Northwestern as well as similar programs at other private institutions would be able to vote for union representation.  And even though a decision under the National Labor Relations Act does not apply directly to public employers, it is possible that state schools, to remain competitive for top players, would essentially match whatever benefits the private school players' unions have successfully bargained for.  The ripple effect from this decision, if it is upheld, is to potentially up-end the NCAA's amateurism paradigm throughout college athletics. 

What is the effect on Title IX from all of this?  I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.  Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women of...health, accident and injury insurance coverage."  Two days ago, it would have clearly violated Title IX for Northwestern to have decided on its own to grant extended health coverage to some of its male athletes but none of its female athletes.  And there is nothing in yesterday's decision that changes that analysis under Title IX.  The fact that male athletes obtained the benefit through collective bargaining is beside the point; it does not absolve the university of having to ensure equal treatment under Title IX.  In similar fashion, universities can't absolve their obligation to provide equal treatment by pointing to other external forces, either, such as a booster club that only gives money to one sex.  The university's obligations under the NLRA apply in addition to its obligations under Title IX; the latter is not supplanted by the former.

This outcome will surely seem weird to many people, and for good reason, I think.  Surely Congress when it passed the NLRA (in 1935) and Title IX (in 1972) never imagined that an educational institution would be subject to both laws simultaneously with respect to its student athletes.  But that's the consequence of having one's cake and eating it too, by which I mean running a profit-seeking business enterprise while receiving federal support and non-profit status.  With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well, meaning, having to collectively bargain with employees, as well as pay minimum wage, workers' compensation, payroll taxes, and the like. If college athletic departments like Northwestern's insist on straddling the line, they will be subject to both laws.  Alternatively, they can choose one paradigm or the other, business or education. In the business paradigm, athletic departments would have no obligation to comply with Title IX, and would be subject only to the demands of the market in determining which athletes to compensate and how much.  But the price of that freedom is no more federal funding, and no tax-exempt status.  Alternatively, in the education paradigm, athletic departments would continue to benefit from federal funding and tax-exempt status.  But the price of this public support is no more running an athletic department as profit-seeking enterprise; athletics would truly have to be an extracurricular activity, not tantamount to a full-time job (an Ivy League, or Division III model of athletics).

If schools choose the latter paradigm, the irony will be that yesterday's decision will not result in any actual players unions being formed.  But the lengths to which college athletics will have to reform itself in order to avoid them is just as game-changing. 

Title IX Lawsuit Filed Against Northwestern

A female student at Northwestern University alleges in a lawsuit filed this week that the university violated Title IX by failing to adequately respond to her reports that she was sexually assaulted by a male philosophy professor in 2012. According to her complaint, the student accompanied the professor to an art show, where he bought her alcohol and then refused her requests to take her home.  Instead, she alleges, he brought her to his apartment where she lost consciousness and awoke the next morning in his bed.  She reported the case to a faculty member, who in turn reported to a university official responsible for sexual harassment prevention.  This official conducted an investigation and apparently made a finding that the professor had  “engaged in unwelcome and inappropriate sexual advances,” including “sleeping with his arms on and around (the student) on the night of February 10-11.”  But the university ignored a disciplinary committee's recommendation that the professor be terminated, and he continues to hold his job.  Meanwhile, the student has attempted suicide and suffers from post-traumatic stress that has required hospitalization.

The lawsuit argues that the university's failure to discipline the professor is "deliberate indifference" that subjects the university to liability under Title IX for the student's damages, including medical and educational expenses and compensation for emotional distress.  The professor is not a defendant to this lawsuit, though he may have to contend with criminal charges.  He, meanwhile, denies the student's allegations, and has sued local papers for defamation, alleging that they falsely characterized the allegations against him as rape in their reports about the case.