By Brian G. Nuedling, of Jackson Lewis
In a ruling that could have a drastic impact upon campus sexual assault proceedings under Title IX, a federal court judge in Tennessee has granted a temporary restraining order to a student, a former football player and fraternity member, preventing his expulsion from a private college because he may have been denied due-process rights in the adjudication of a sexual-misconduct case. This is the first time a judge has issued a decision specifically raising Title IX’s due process requirement involving a private institution.
In a rebuke of a campus hearing process used to determine the outcome of sexual assault cases, a the federal court judge found that a student may have been wrongfully found culpable of violating a private school’s sexual misconduct policy because the student’s accuser had not attended a Title IX disciplinary hearing and had not been subject to either cross-examination or questioning by the school’s decision panel.
As recounted by the court in John Doe v. Rhodes College, No. 2:19-cv-02336-JTF-tmp (W.D. Tenn. June 14, 2019), the salient facts of the case are the following:
The Plaintiff and “Z.W.,” both of whom were football players and members of Sigma Alpha Epsilon, attended a fraternity event on the Rhodes campus around February 14, 2019. The Plaintiff was accompanied by “C.S.,” his date for the evening. During the event, C.S. consumed a large quantity of alcohol, smoked marijuana, and used cocaine. C.S. then became violently ill and was characterized as incapacitated, in-and-out of consciousness, vomiting, refusing to drink water, and speaking incoherently. The Plaintiff and four other members of the fraternity attempted to ensure that C.S. was not in danger, and the Plaintiff contacted a friend to pick up C.S. When the friend arrived, C.S. told her, “They raped me,” and stated that she wanted to go to a hospital. When they arrived at a hospital, C.S. stated that she had changed her mind and instead wanted to go home. C.S. identified two students who had allegedly raped her, though neither one was the Plaintiff. Asked whether anyone else was involved, C.S. indicated that she was unsure. C.S. then responded with a “thumbs down” when asked whether “the guys had sex” with her. The next morning, C.S.’s friend reported that “she thinks she was raped but doesn’t know if she is misremembering.”
On February 15, 2019, Rhodes published a notice that a sexual assault had been reported on campus, and police went to the school to question Rhodes students. During the next week, an organization known as “Culture of Consent” staged protests related to sexual assaults and the investigations of such incidents. The protests were directed toward the Rhodes administration and student body, fraternal organizations, and Rhodes football players. The organization staged similar protests three days after the school’s Title IX investigation had been completed and thirteen days prior to a disciplinary hearing during which the Plaintiff and Z.W., his male friend, were determined to have violated the school’s sexual misconduct policy and were ordered expelled.
Rhodes’ Title IX investigator interviewed 14 witnesses, excluding the Plaintiff and C.S. The court noted that none of the witnesses with personal knowledge of the events at the party corroborated C.S.’s claim that she had been raped. One witness stated that he was in the presence of C.S. during the fraternity event, and that no sexual assault or inappropriate contact took place. The only evidence supporting C.S.’s version were the statements she made to the two friends while in a compromised condition.
On April 5, 2019, Rhodes charged the Plaintiff and Z.W. with violating the school’s sexual misconduct policy. On April 17, 2019, a hearing was held to determine whether a violation had occurred.
The court took issue with the hearing process, noting the following: The Plaintiff and Z.W. appeared at the hearing and denied wrongdoing. C.S., however, did not attend or participate in the hearing and was not subject to cross-examination or questioning by the decision panel. No witness testimony supported C.S.’s contention that she had been raped. The only testimony that related to the conduct of the Plaintiff and Z.W. toward C.S. was that they had attempted to help C.S. and had called her friends to pick her up. Every witness who had attended the party testified that they were regularly in the presence of C.S. and that nothing like a sexual assault had occurred.
Rhodes ultimately concluded that the Plaintiff and Z.W. were responsible for sexual misconduct by a preponderance of the evidence and ordered both of them expelled from the school. The Plaintiff then filed suit, alleging that Rhodes had violated Title IX based on “selective enforcement” and an erroneous outcome of its investigation. The Plaintiff further sought to enjoin Rhodes from enforcing its decision to expel him and withhold his degree.
In analyzing the Plaintiff’s request for injunctive relief, the court found that he had presented a “substantial likelihood of success” on the merits of his Title IX claim based on the theory of an “erroneous outcome.” Taken from a Second Circuit case, Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994), the “erroneous outcome” is one of two methods for challenging a college’s disciplinary proceeding on grounds of gender bias under Title IX. Citing Doe v. Miami University, 247 F. Supp. 3d (S.D. Ohio 2017), the court noted that, to state an erroneous-outcome claim, a plaintiff must plead facts “sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding.” The erroneous-outcome theory also requires a “particularized … causal connection between the flawed outcome and gender bias.”
Here, relying on testimonial evidence and statements that C.S. had given prior to the hearing, the court suggested that the college’s hearing process was flawed as a matter of fundamental fairness. The court stated: “In cases involving sexual misconduct, an accused student must have the right to cross-examine adverse witnesses. To adequately assess credibility, which concerns both the accused and the accuser, there must be some form of live questioning of the accuser in front of the fact-finder; written statements of the accuser will not suffice.” The court concluded that the “nonappearance” of C.S. “appears to be a significant denial of due process.”
The court, therefore, enjoined Rhodes from enforcing its decision to expel the Plaintiff pending the outcome of the underlying litigation, as the Plaintiff had shown “a substantial likelihood that the proceeding by which he was expelled was improperly conducted in violation of due process and that there is a particularized connection between the flawed outcome and gender bias.”
The court, however, denied the Plaintiff’s request to enjoin Rhodes from refusing to confer to him an academic degree, since Rhodes had presented evidence showing that, even without the disciplinary proceeding, the Plaintiff had not satisfied all graduation requirements. If unsuccessful in his lawsuit, the Plaintiff will again be expelled from the school.