Last month, in two separate OnPoints we highlighted decisions of the Sixth Circuit and Ninth Circuit that reversed the dismissal of Title IX claims challenging university sexual assault disciplinary proceedings and their relation to new Title IX regulations issued by the Department of Education. Now, on September 4, 2020, the Eighth Circuit issued a unanimous decision in Doe v. University of Arkansas-Fayetteville, ___ F.3d ____, 2020 WL 5268514, which has added an important opinion to this developing body of law. In University of Arkansas, the Eighth Circuit reversed the dismissal of Title IX claims challenging university sexual assault proceedings for discrimination on the basis of sex, but it affirmed the dismissal of due process claims challenging the constitutional sufficiency of procedures used by the university.

The Eighth Circuit first concluded “several circumstances taken together” plausibly alleged “that the University disciplined [the plaintiff] on the basis of sex—that is, because he is a male.” Id. at *4. Those circumstances included, first and foremost, that the allegations “support an inference that the hearing panel reached an outcome that was against the substantial weight of the evidence.” Id. The university had found the student responsible for sexual assault where the complainant had alleged incapacitation, but the university’s own Title IX coordinator had concluded that alcohol consumption “had not substantially impacted her decision-making capacity, awareness of consequences, and ability to make fully informed judgments.” Id. Second, the Eighth Circuit held that the university’s imposition of relatively minor sanctions for alleged “sexual assault by force” suggested he was found responsible “to avoid further negative media attention and to portray a stricter approach to sexual assault cases.” Id. at *5. And third, as in the Sixth and Ninth Circuit decisions, the Eighth Circuit held that allegations of governmental and media pressure “to find males responsible for sexual assault” supported an inference of discrimination on the basis of sex. Id. The Eighth Circuit accordingly reversed the dismissal of the plaintiff’s Title IX claims.

However, the Eighth Circuit affirmed the dismissal of the plaintiff’s due process claims under section 1983 against university administrators in their official and individual capacities. The court upheld various procedures challenged by the plaintiff, including the lack of notice that a university appeal panel would consider new allegations of sexual assault by force, the failure to permit the male student to cross-examine witnesses, the use of a preponderance of the evidence standard of proof, and de novo review by the university's appeal panel. Id. at *7-8. In addition, the Eighth Circuit held that the plaintiff failed to adequately allege certain other procedural violations—for example, shifting the burden of proof or failure to investigate additional witnesses. See id.

The Eighth Circuit’s decision in University of Arkansas is significant because it affirms that students held responsible in university sexual assault proceedings state Title IX claims where they allege substantive and procedural problems that, taken together, suggest discrimination on the basis of sex—particularly the existence of government and media pressure to find men responsible. However, University of Arkansas also holds that the use of certain challenged procedures in disciplinary proceedings does not necessarily rise to the level of a due process violation. This is important because certain of the procedures that the Eighth Circuit allowed to stand—for example, the lack of cross-examination—have specifically been required in new Title IX regulations from the Department of Education, which took effect last month. This decision provides important guidance to universities as they work to implement those regulations, particularly as they work through whether the Title IX regulations apply to all proceedings and whether those regulations merely establish a “floor” that allows universities to impose additional regulations more protective of victims. Universities should carefully evaluate their Title IX policies in light of those new regulations and potential downstream risk from private Title IX litigation.