Key Takeaways:

• The Sixth Circuit’s Doe v. Oberlin College decision confirms that in college and university disciplinary cases, fair processes are not optional; they apply to everyone alike—whether the accused or the accuser.
• What federal courts are reaffirming is that not only is fairness the right thing, but it is required under federal law.
• All colleges, universities, and schools must take note and act accordingly or risk their procedures and decisions not withstanding court scrutiny—or even worse, being used against the schools.

With approximately 5,300 colleges and universities in the United States, and a student population of nearly 20 million, school disciplinary systems impact a large segment of our society and have been receiving increased attention in the last two Administrations. As colleges and universities continue to grapple with and manage allegations of sexual and other misconduct at all levels (although, admittedly, less so these days because of the coronavirus pandemic), an important decision from the U.S. Court of Appeals for the Sixth Circuit is sure to become a frequently-cited source of precedent for anyone challenging the procedures—or their application—in school disciplinary proceedings, especially those arising under Title IX. That’s because the Sixth Circuit recently held that a student can state a viable Title IX sex discrimination claim that survives the motion-to-dismiss stage so long as s/he is able to “plausibly” allege facts that cast doubt on the outcome of an institution’s disciplinary proceedings. Just as trial judges routinely instruct juries to exercise “common sense” when deliberating on cases, the Sixth Circuit, likewise, has turned to that same concept to hold that sometimes decisions are just so “arguably inexplicable” and against the weight of the evidence that “the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.” Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020).

Thus, there are three key lessons from the Sixth Circuit’s decision in Doe v. Oberlin College: First, policies and procedures matter—they matter a lot. Failure to adhere to formalized policies and procedures can result in unintended consequences: such failures can be used as a sword to show the unfairness of the proceeding, as opposed to a shield to show that the student was treated in the same way as all other students. “Paper policies,” therefore, can actually be a source of liability, not protection. Second, the best policy is one that a school can live with and realistically have the resources and expertise to implement—and implement effectively. What is good for a national school with a huge endowment, may not be appropriate for a small liberal arts school struggling with enrollment. Last, but perhaps most important: school policies must be fair—and fair to everyone. Fair means that they should not tip the scales in favor of either student, leading to suspect outcomes that erode confidence in the system. Reliability and effective procedural safeguards for the accused and the accuser alike are the hallmarks of a properly functioning disciplinary system able to withstand scrutiny from within and outside the community. When school policies do not meet that objective standard, relying on Oberlin College, courts may well not defer to them, as was the case, in that decision.

The Unsatisfactory Problem of “False Positives” and “False Negatives”

With so much ink already having been spilled on the college disciplinary process, some might wonder what all the hubbub is about. Well, it’s about fair play, equal treatment, and a relentless quest to find a system that avoids as much as possible miss hits on both ends of the liability spectrum. As to this latter point, “false positives” as that terms is commonly understood, describes a scenario where someone is held responsible for a violation, when s/he should not be. “False negatives,” represent the opposite ill: someone who should be adjudicated liable, evades responsibility. The stronger the policies and procedures—and due process protections they codify—in an adjudicative system, the more likely the outcomes will be fair and reliable. And, with such a system, comes greater confidence that the outcome can be trusted and accepted by the various stakeholders, whether the parties, their parents, faculty, alumni, the community, or others. This is true as a matter of constitutional due process and equal protection as well as under the implementing federal statutes and regulations that breathe life into those principles and create consequences when those values are not upheld.

Federal Law Guarantees a Fair Process in Higher Education Disciplinary Proceedings

The baseline with which colleges and universities are familiar—and must satisfy—are the strict requirements of Title IX of the Higher Education Act of 1965. Having just celebrated its 48th anniversary, that historic statute prevents educational programs that receive federal financial assistance (whether public or private) from discriminating against students based on their sex. Specifically, Title IX, 20 U.S.C. § 1681, states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Based at least in part on the 2017 Recommendations from the American Bar Association Criminal Justice Section’s Task Force on College Due Process and Victim Protections, which was constituted and Chaired by our partner, Andrew S. Boutros, the Department of Education’s recently-promulgated regulations fill in the gaps—in detail—with what intuitions must do to be compliant with federal law. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106 and take effect on August 14, 2020), available here. For example, consistent with that mandate, schools must:

• Implement a “consistent, legally sound framework on which survivors, the accused, and schools can rely;”
• “[O]ffer clear, accessible options for any person to report sexual harassment;”
• “Empower[] survivors to make decisions about how a school responds to incidents of sexual harassment;”
• “[O]ffer survivors supportive measures, such as class or dorm reassignments or no-contact orders;”
• Ensure “fairness” by upholding “all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing;”
• “Shield[] survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused;”
• “[S]elect one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard—and to apply the selected standard evenly to proceedings for all students and employees, including faculty;”
• Abide by “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records;”
• “[O]ffer an equal right of appeal for both parties to a Title IX proceeding;”
• Be free to “use technology to conduct Title IX investigations and hearings remotely;” and
• “Protect[] students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment.”

The Sixth Circuit Provides Clear Guideposts for Complying with Title IX in Disciplinary Proceedings

What Title IX means and how it is to be interpreted is a matter of both agency and judicial interpretation. And, just in the last month or so, the Sixth Circuit weighed in and added calcium to Title IX’s teeth. Any student, male or female, can allege a viable Title IX claim so long as they allege “plausible” facts that cast doubt on the outcome of an institution’s disciplinary proceedings.

Specifically, in a 2-1 decision in Oberlin College, a male student challenged Oberlin’s decision to expel him for having been found to have violated the school’s sexual assault policy. The student sued for breach of contract and negligence, claiming that he was a victim of sex discrimination under Title IX because Oberlin reached an “erroneous outcome” in his disciplinary proceedings because of his sex. The Sixth Circuit agreed and reversed the district court’s decision, finding that the school’s conclusion was not entitled to deference because “for any number of reasons,” the student had adequately pled that his expulsion was due to unlawful gender discrimination. 963 F.3d at 586.

In the eyes of the Sixth Circuit, an “erroneous outcome” claim under Title IX requires a plaintiff to “plead 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 sex discrimination.” Id. (emphasis added). Based on this standard, the Sixth Circuit found that the male student satisfied both prongs. First, the full panel agreed that the student “pled facts casting doubt on the accuracy of his proceeding’s outcome.” Second, two judges agreed the student “pled facts plausibly suggesting [the] outcome was caused by sex bias.” Id. (emphasis added). In so doing, the Court rejected the school’s position that the student had to identify some unique bias to his own proceeding to show a “particularized causal connection.” Not so; instead, relying on Circuit precedent, the Court concluded that “patterns of decision-making” can demonstrate the requisite connection between outcome and sex, otherwise there existed a risk that “categorical[] discriminat[ion] against men or women in sexual-assault proceedings could escape liability in erroneous-outcome cases.” Id.

In addition, in what can be used as a helpful roadmap for identifying deficiencies in school disciplinary proceedings, the Court zeroed in on what it described as “clear procedural irregularities” in the school’s adjudicative processes. The common thread was that although the school had specific policies in place for adjudicating the student’s claims, the school failed to abide by them, time and again. That allowed the student successfully to turn the table on the school, and put the school’s unfollowed policies “on trial” in federal court. Specifically:

• The school (i) significantly delayed completion of its investigation (120 days vs. the policy’s 20 days); (ii) failed to give the student adequate notice of the specific allegations against him; and (iii) its hearing panel’s decision also suffered from excessive delay (240 days vs. the policy’s 60 days for completing the matter and 180 days from the filing of a complaint for the hearing panel to reach a decision). Id. at 586-87.
• The school also (i) failed to communicate to the parties the reasons for its delays and expected timelines; (ii) assigned an advisor who did not attend the entire disciplinary hearing; and (iii) its hearing panel failed to comment on clear contradictions in the record testimony and impeachment evidence the male student presented against his accuser’s claims. Id. at 587.
• And, quite significant from an evidentiary perspective, the two-judge majority was deeply troubled that every case that went to a panel hearing during the operative time period resulted in a decision that an accused male was “responsible” on at least one charge. Id. That fact, the Court found, “supports an inference regarding bias in the hearings themselves.” Id. In so concluding, the majority disagreed the dissent’s view that the limited data presented was not “statistically significant.” Id. at 593 (Gilman, J. dissenting).

Key Lesson

At bottom, what the Sixth Circuit’s Oberlin College decision confirms is that in college and university disciplinary cases, fair processes are not optional; they apply to everyone alike—whether the accused or the accuser. Not only is fairness the right thing, but it is required under federal law. All schools—even the most well intending of them—must take note and act accordingly or risk their procedures and decisions not withstanding court scrutiny—or even worse, like a Jiu-jitsu move, being used against the schools.