In an environment where accused students too often need to go to court to undo unfair Title IX adjudications, lawsuits against universities continued apace in 2019. A critical ruling in the Seventh Circuit highlighted the year, but some troubling rulings elsewhere provided a reminder that in this area of the law, an unsympathetic judge can be enough to ensure a bad outcome.
First, the statistics. For the year, there were 78 new federal lawsuits filed by accused students, a rate essentially unchanged from 2018 (77 federal lawsuits filed) and 2017 (78 federal lawsuits filed). Both the state and federal level produced decisions in 96 cases—43 of which were university setbacks. Universities prevailed in 46 cases, while seven yielded mixed or neutral decisions.
That rate represents a reversal of the general trend since 2014, in which universities have experienced slightly more setbacks than victories. The changes seem largely due to litigation tactics on both sides. First, in 2019, universities more aggressively settled cases where they might be vulnerable before a court made any sort of decision—23 times in federal lawsuits in 2019, and at least 9 times in state lawsuits. Second, some schools avoided filing motions to dismiss, allowing discovery but going to the court only at the summary judgment stage, where courts have been more reluctant to side with accused students, especially on Title IX claims. Finally, accused students sought more preliminary injunctions—which are much harder to obtain—than in years past.
The most significant ruling came in June, from the Seventh Circuit. A panel of Amy Comey Barrett, Diane Sykes, and Amy St. Eve unanimously held for an accused student at Purdue in a ruling penned by Judge Barrett, a Trump nominee and GOP Supreme Court short-lister. In a ruling that bitterly castigated what she termed a “process [that] fell short of what even a high school must provide to a student facing a days-long suspension,” the court held that—given the severity of the charges—the accused student was entitled to “relatively formal procedures.” A process in which the university’s investigator didn’t speak to the accused student’s roommate (who allegedly possessed exculpatory evidence) and in which the hearing panel pronounced guilty without even hearing from the accuser fell well short of this standard. The Purdue decision also offered a more plaintiff-friendly test for determining whether a Title IX lawsuit should move forward, with the court requiring a holistic evaluation of the case.
Other 2019 significant victories for accused students came at the district court level, where the court denied summary judgment for the university, greenlighting the case to trial. (In each of these cases, the university then settled.) In Jack Montague’s lawsuit against Yale, the court denied summary judgment on both breaches of contract and basic fairness, and in a variety of areas—including whether Yale found Montague guilty despite a lack of sufficient evidence. District courts in lawsuits against Quinnipiac and Grinnell greenlighted for trial claims that the schools had discriminated against the accused student because he was male. And a district court granted a temporary restraining order against Rhodes (Tennessee) in a ruling that suggested that Title IX required due process principles even from private universities. Finally, the year featured the first post-Dear Colleague letter jury trial, in which an accused student prevailed against Boston College.
At the same time, the year featured some troubling results. Despite seemingly strong complaints, accused students lost in lawsuits against Arkansas and Oberlin (both cases have been appealed). The Occidental case, in which the accused student was found guilty despite text messages from the accuser indicating her consent, came to an end with a horrific ruling from a California appeals court, which not only suggested courts should defer to university judgments but was presented in a tone suggesting that the judges agreed with Occidental’s decision. And Appeals Court decisions from the First Circuit (BC) and Seventh Circuit (Columbia College) wound up being quite narrowly written but nonetheless seemed to have an intent to narrow earlier circuit rulings for accused students.
In 2020, we await issuance of the DeVos Title IX regulations, which seek to create a more level playing field in Title IX adjudications. Accusers’ rights organizations have promised to sue to prevent that from occurring. Quite apart from that litigation, this year’s focus will turn to the Eighth Circuit (Minnesota, Iowa, the Dakotas, Nebraska, Missouri, and Arkansas), which is expected to issue five rulings in appeals filed by accused students. The cases run the gamut from due process (University of Arkansas) to Title IX (four cases) to breach of contract (Drake) to negligence (University of St. Thomas) to racial discrimination in punishment (University of Missouri, University of Minnesota). Potentially significant opinions could also come from the Third Circuit (St. Joseph’s of Pennsylvania), the Sixth Circuit (Oberlin), and the Tenth Circuit (University of Denver).
In short, litigation in this area in 2020 promises to be just as significant as in 2019.