Thursday, July 30, 2020
Another Title IX ruling
July 30, 2020, Inside Higher Ed
The U.S. Court of Appeals for the Ninth Circuit delivered a win for students accused of sexual misconduct on July 29, reinforcing the use of a “far simpler standard” for judges to determine whether colleges discriminated against these students based on their gender while investigating them for sexual assault or harassment. Three federal circuit courts have now adopted the standard of “plausible inference,” as it is called, to rule on cases where a student claims their institution conducted a biased investigation against them using procedures developed under Title IX of the Education Amendments of 1972, the law that prohibits such discrimination at federally funded institutions. Under the standard, accused students must only “raise a plausible inference that the university discriminated” against them, which is less demanding than standards used in other circuits for similar claims.
The Second and Sixth Circuit courts, for example, have required accused students to show the outcome of the Title IX investigation into their alleged misconduct may be flawed or provide proof that “regardless of the student’s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student’s gender,” said the Ninth Circuit’s ruling, which was written by Judge Milan Smith Jr. The “plausible inference” standard does not require the court to evaluate whether the original misconduct occurred or not, but that the college discriminated against the accused student at some point during the Title IX procedures.
In adopting this standard, the Ninth Circuit reversed an Arizona district court’s decision to dismiss a former Arizona State University student’s lawsuit against the state’s Board of Regents. David Otto Schwake, the student, argues he was discriminated against throughout the university’s investigation into his alleged sexual assault of a female student. Schwake’s evidence of alleged discrimination included a professor and the female student talking about the outcome of the investigation publicly before the student had the chance to appeal his ban from a campus research lab.
Note: We have noted in the past that courts are schooled in the notion of due process and tend to reject procedures that seem not to accord with that concept. These kinds of decisions pre-date the recent rules promulgated by the Dept. of Education.