Sexual assaults on college campuses are an issue to be taken seriously. Colleges and universities are well aware of their responsibility under Title IX to address and remediate sexual abuse; but with that responsibility comes an obligation to identify unsubstantiated claims. To fulfill these obligations, colleges have enacted comprehensive anti-harassment and sexual misconduct policies, conducted training and promulgated adjudicatory procedures that serve to provide protection and redress for victims of sexual assault, while ensuring that those accused of sexual assault are provided with fair protections from unsubstantiated allegations.
Recognizing the unique character of the academy and diversity among academic institutions, the U.S. Department of Education (DOE) affords colleges and universities discretion in many areas of Title IX compliance. Institutions are charged with responding to allegations of gender discrimination and harassment in an even-handed, principled and unbiased manner, without regard to the gender of a complainant or respondent. 34 C.F.R. §106.45(a) (“a recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under Title IX.”)
In accord with the DOE, the Sixth Circuit has historically limited its review of Title IX cases alleging wrongful outcome to those cases in which a plaintiff has pleaded facts sufficient to (1) ‘cast some articulable doubt’ on the accuracy of the disciplinary proceeding’s outcome, and (2) demonstrate a ‘particularized . . . causal connection between the flawed outcome and gender bias.’” Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018) (quoting Doe v. Miami Univ., 882 F.3d 579, 592 (6th Cir. 2018)).
However, in the June 29, 2020, decision, Doe v. Oberlin College, available here, a panel majority lowered the pleading standard, holding that “patterns of decision-making” in an institution’s cases were sufficient to demonstrate gender bias in a particular case. This holding marks a significant departure from precedent and presents several challenges to higher education institutions:
The Decision Marks a Departure from the Judicial Deference Generally Afforded to Internal College and University Disciplinary Panels
Prior to this decision, federal courts were slow to second-guess determinations made by trained panel members in student disciplinary hearings. See e.g., Al-Dabagh v. Case Western Reserve Univ., 777 F.3d 355, aff’d, 2015 U.S., App. LEXIS 4283, cert. denied, 135 S. Ct. 2817 (2015) (reasoning that the court can no more substitute its personal views for a committee's decision in a student’s dismissal proceeding than a committee can substitute its views for a court when it comes to a judicial decision); Doe. v. College of Wooster, 243 F. Supp.3d 875, 984 (N.D. Ohio 2017) (“As for assessing the credibility of hearing witnesses, such determination is well within the discretion of the disciplinary board, and it is not for the courts to second guess”); see also Z. J. v. Vanderbilt University, 355 F. Supp. 3d 646 (M.D. Tenn. 2018) citing Doe v. W. New England University, 228 F. Supp. 3d (D. Mass. 2017) (“[I]t is not the business of lawyers and judges to tell universities what statements they may consider and...
