A blockbuster decision dropped in the Title IX Sexual Assault world last week when the Sixth Circuit Court of Appeals ruled, in part, against Miami University in a case filed by a suspended student. The student had been suspended for sexual assault based on a theory that the alleged victim was “severely intoxicated” (an undefined term in Miami’s Code of Student Conduct) when sexual conduct allegedly occurred. There are several layers to this decision that carry important implications for both accused students and alleged victims; perhaps the most interesting involve the constitutional rights of equal protection under the law in terms of who Miami chooses to prosecute for a claim of sexual assault.
Miami University’s Code of Student Conduct sets a bright-line rule that if a student is “severely intoxicated,” then anyone who has any sexual contact with that student has committed a sexual assault against that student-regardless of what the “severely intoxicated” student said or did to indicate that they wanted to have sexual contact with the accused. In John Doe the alleged victim is said to have climbed into bed with the accused, where sexual contact between the two occurred. The alleged victim was purportedly “severely intoxicated,” but, in a common twist, the accused student also presented significant evidence that he too was “severely intoxicated.” Nonetheless, Miami did not choose to bring an action against the alleged victim for violating the Code of Student Conduct. As the Court noted, Miami had “credible information that both students had potentially violated the University’s sexual misconduct policy…however, chose not to pursue disciplinary action against the female student, but only against the male student.” The Court found these facts significant enough for the case to proceed on a theory that Miami denied the accused student “equal protection under the law.”
The crux of this part of the case can be stated more simply, if not more crudely, by asking “is a drunken hookup a sexual assault?” If so, are there not thousands of sexual assaults occurring on college campuses every weekend? Is the fair approach under this standard to suspend both parties from school after such an encounter?
The case will now proceed to discovery, or perhaps settle, and we will learn more. But these are important issues to consider and watch as they proceed through the courts. Contact the attorneys at Rittgers Rittgers & Nakajima for more information about Title IX cases.
Part 2
When students and their families tell me that they “want to sue” after being found responsible for sexual assault at a University Hearing, they generally believe that the court can be used as a sort of “super appeals court” to have their hearing redecided on the merits; generally this is precisely what the courts will not do, but the recent John Doe v. Miami University decision has given some life to this use of the courts to challenge Title IX sexual assault cases (if you are not familiar with the facts of this case, see Part 1 of this series). The 6th Circuit Court of Appeals has said that if an accused can show “‘(1) “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2) a “particularized . . . causal connection between the flawed outcome and gender bias,”‘” then the accused can challenge the outcome in court with an “erroneous outcome” claim.
Most interesting is that inconsistencies in the accuser’s statements to the disciplinary panel-a factor that in my experience the panels do not give much weight-were critical to the Court’s findings in this case. In particular, the accuser in this case told the disciplinary panel both that she “said no” and that she “never said no” with regards to some of the alleged sexual contact. The disciplinary panel found the accused responsible for sexual assault despite this inconsistency, but the Court said the alleged inconsistency was enough for the accused’s lawsuit to proceed on an “erroneous outcome” claim. The Court was also concerned that the disciplinary panel misstated its own codified standard of consent, something that frankly we have seen all too often at these hearings.
A student looking to apply this holding for his or her benefit should take note of the more onerous second requirement, however, the “causal connection between the flawed outcome and gender bias.” In this case the accused’s attorneys presented significant statistical evidence to demonstrate that Miami had a history of instituting disciplinary action against males, but not females, for allegations of sexual assault. Such information is often not easy to acquire at the beginning of a lawsuit.
Part 3
In addition to the novel interpretations of the law laid out in Part 1 and Part 2 of this series, the Court also reaffirmed the importance of the accused’s right to notice of the charges and access to the evidence in University Title IX Hearings. These rights seem so obvious and fundamental, but believe it or not the Court’s affirmance of these rights is significant given past deprivations that the accused have faced.
In terms of access to the evidence, John Doe alleged that he was not provided with the Title IX Report before the hearing. This report is prepared by someone called a Title IX Investigator, and often contains detailed information, evidence, and summaries of interviews that this person has conducted before the hearing. The hearing panel almost always has access to the report and has read the report before the hearing. Without access to the report, the accused goes into the hearing at a significant disadvantage, and therefore the Court firmly held that “[t]he Constitution does require, however, that the student be provided the evidence against him.”
The Court did not find a notice issue in this particular case, but notice is an issue that has received some attention in the courts lately so I want to make an additional point about it: it is very important to compare the initial allegations that the accused receives (usually through email) with the allegations actually prosecuted at the hearing. Courts have proven to be receptive to arguments about students who, say, are initially notified that they are alleged to have used unwanted force during a sexual encounter, but who are then later subjected to a hearing where the only issue is whether or not the accuser consumed too much alcohol to consent. Disconnect between the allegations and the actual prosecution are very important and can be actionable in court .
That wraps up our series on this very important case. If you have questions about John Doe v. Miami or any other questions related to Title IX, contact the attorneys at Rittgers Rittgers & Nakajima.
Doe v. Miami Univ., 6th Cir. No. 17-3396, 2018 WL 797451, *12