Due Process

Expelled Student's Sex Discrimination Claim Against Oberlin College Can Go Forward

"[The Oberlin] panel's decision was arguably inexplicable. Per the terms of Oberlin's Policy, intoxication does not negate consent—only 'incapacitation' does.... And the record here provided no apparent basis for a finding that Roe [was incapacitated]."

|The Volokh Conspiracy |

Student John Doe had been expelled by Oberlin College for sexual misconduct; he sued Oberlin for Title IX, claiming it had been biased against him because of his sex. In today's decision in Doe v. Oberlin College, written by Judge Ray Kethledge and joined by Judge Chad Readler, the court allowed the case to go forward; here's an excerpt (though there's a good deal more to the decision as well):

Doe sued Oberlin under Title IX, which bars universities that receive federal funds "from discriminating against students on the basis of sex." Doe asserts in particular an "erroneous outcome" claim, which is that a university reached "an erroneous outcome in a student's disciplinary proceeding because of the student's sex." To state a  claim under that theory, "a plaintiff must 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.

Here, everyone agrees that Doe pled facts casting doubt on the accuracy of his proceeding's outcome. The question, then, is whether he pled facts plausibly suggesting that outcome was caused by sex bias….

For any number of reasons, we hold that he did. We begin with the "clear procedural irregularities" in the College's response to the "allegations of sexual misconduct," which, as the Second Circuit has held, "will permit a plausible inference of sex discrimination." The College's own Policy states that usually its investigation will be completed in 20 days, and the matter as a whole will be resolved in 60. But here the investigation alone took 120 days; Doe was not even informed of the specific allegations against him for that same period; and the hearing panel did not reach a decision until about 240 days after the complaint, which was 180 days later than contemplated by the Policy.

That delay was compounded by the College's failure to do what the Policy twice promised it would do, namely to notify the parties "of the reason(s) for the delay and the expected time frames." Those omissions were especially strange given that those promises were included in the Policy precisely because, in 2012, a female student had understandably complained about the emotional harm caused by the College's delay in resolving the proceeding in which she was involved.

And those omissions were stranger still given that Doe pleaded with [Title IX Coordinator Professor Meredith] Raimondo via email about the emotional devastation wrought by the delays in his proceeding—and received little or no response. Remarkable as well was advisor [Assistant Dean Adrian B.] Bautista's performance, given that he did not even attend the entire hearing, even though his role was to assist Doe there. {Such an advisor, the College conceded at oral argument, is supposed to serve the best interests of the accused at the hearing.}

Likewise remarkable—in a proceeding in which the credibility of accuser and accused were paramount—was the failure of the hearing panel even to comment on the flat contradiction, expressly noted by Nolan at the hearing, between what Roe told him during his investigation and what she said during the hearing, regarding whether Doe "asked" for oral sex. And of a piece was the Appeals Officer's failure even to acknowledge the importance of [proposed newly discovered witness] J.B.'s statement as impeachment evidence regarding Roe's claims. Procedural irregularities provide strong support for Doe's claim of bias here.

Doe's claim also finds support from his allegation that—throughout the pendency of his disciplinary proceeding—the federal Department of Education's Office of Civil Rights was engaged in "a systemic investigation of the College's policies, procedures, and practices with respect to its sexual harassment and sexual assault complaint process." For "pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if [the College] failed to comply" can likewise yield "a reasonable inference" of sex discrimination. Oberlin contended  at oral argument that we should reject that inference here, because Raimondo "welcomed" the federal investigation. But on this record, suffice it to say, that fact could cut either way.

Doe's complaint also cites Oberlin's "Spring 2016 Campus Climate Report," which stated that—during the very academic year in which Doe's "responsibility" was determined—"every single case" that went to a hearing panel resulted in a decision that the accused was "responsible" (i.e., guilty) on at least one charge. That statistic likewise supports Doe's claim. Oberlin responds that only 10 percent of sexual-assault complaints were resolved through a formal hearing that year. But Doe reads that same Report to mean that, in 80 percent of the cases, the complainant herself chose not to pursue the matter formally. In still other cases, the responding party had graduated or otherwise left the College. And in any event the 100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.

But Doe's strongest evidence is perhaps the merits of the decision itself in his case. True, the first element of an erroneous-outcome claim—whether the facts of the case "cast some articulable doubt on the accuracy of the disciplinary proceeding's outcome[]"—already takes into account the proceeding's outcome to some extent. But when the degree of doubt passes from "articulable" to grave, the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.

And on the merits here the panel's decision was arguably inexplicable. Per the terms of Oberlin's Policy, intoxication does not negate consent—only "incapacitation" does. The Policy rather precisely defines that term. And the record here provided no apparent basis for a finding that Roe "lack[ed] conscious knowledge of the nature of the act" of oral sex, or that she was "asleep, unconscious, or otherwise unaware that sexual activity [was] occurring[,]" or that she "no longer underst[ood] who [she was] with or what [she was] doing."

Nor was there any apparent reason for Doe to perceive that Roe was in such a state. To the contrary, Roe was conscious and aware enough to engage in a coherent exchange of texts, to make small talk, and to reason that, "[w]e were no longer clothed and I felt that if anything was to continue  happening, I wanted a condom." Thus, on this record—and making all inferences in Doe's favor at this stage of the litigation—one could regard this as nearly a test case regarding the College's willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year. Doe has amply stated a claim for sex discrimination in violation of Title IX….

Judge Ronald Gilman dissented:

This circuit has articulated a two-part test that a plaintiff must meet in order to survive a motion to dismiss under the Title IX erroneous-outcome theory. Under that test, "a plaintiff must 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 gender bias.'"

I fully agree with the majority that Doe has raised a colorable claim as to the first prong of [the relevant] test. The key problem that I see with the majority's opinion, however, is that it proceeds to conflate the two prongs. In fact, the opinion flatly states that "Doe's strongest evidence is perhaps the merits of the decision itself in his case." But our previous caselaw makes clear that "allegations of a procedurally or otherwise flawed proceeding that has led to an adverse and erroneous outcome combined with a conclusory allegation of gender discrimination is not sufficient to survive a motion to dismiss." …

[As to the delays in the case,] Doe was permitted to access the materials and information submitted; it just took longer than he had anticipated. But nowhere does Doe allege that this delay occurred only for male students, or that the process was different for men. Oberlin's delay, without any proof that these delays happened only to male students, cannot support a finding of gender bias….

[As to the procedural irregularities,] Doe received almost all of the protections and procedures outlined in Oberlin's manual. The process was admittedly not perfect, but Doe had a hearing, received a copy of the investigative report, and was permitted to present his story….

The majority also cites the time frame of the investigation as supporting procedural irregularities. But Oberlin's Sexual Misconduct Policy explicitly notes that individual cases might require a longer time frame. Admittedly, Oberlin should have notified Doe in writing that the investigation and resolution were taking longer than the 20 days and the 60 days, respectively, stated as goals in the Policy. Oberlin, however, apparently failed to notify either party of the reason for the delay.

In fact, the majority points out that Oberlin had previously been criticized by a female student for its delay in resolving the sexual-assault proceeding in which she was involved. The Policy was ostensibly adopted to address that criticism, but Doe has not alleged any link between the delay or lack of notice and gender bias. In the absence of any such link, Oberlin's delay in resolving his case should have no bearing on our analysis….

[The majority also points to] alleged outside pressure on Oberlin…. [But such] pressure alone cannot yield a reasonable inference of gender discrimination….


The majority opinion also cites the statistic that "'every single case' that went to a hearing panel resulted in a decision that the accused was 'responsible' (i.e., guilty) on at least one charge." But as Oberlin points out, approximately 10% of roughly 100 complaints related to sex-based misconduct even made it to the hearing stage. In other words, approximately 90% of cases did not lead to a finding of responsibility or any kind of disciplinary action.

The majority further notes that Doe reads Oberlin's 2016 Campus Climate Report to mean that, in 80% of these complaints, the complainant chose not to formally pursue the matter. But the Report says nothing to that effect. It instead states the following: "Most parties making reports ask for various remedies but also request that the College take no disciplinary action…. About 20 percent of all reports in 2015–16 were referred to full investigation, and if appropriate, formal investigation.  The threshold to move to formal process was met in around half of investigations …."

Although the Report acknowledges that "most parties" requested no disciplinary action, nothing in the Report suggests that a full 80% chose not to formally pursue their complaints. In other words, the 20% of the complaints referred to full investigation in no way implies that the other 80% were dropped because of a lack of pursuit by the complainants.

The majority also states that there is a "100 percent responsibility rate" at the hearing stage. But "responsibility" in this context has a very broad meaning. In each of these approximately 10 cases, the accused was found responsible on at least one charge, but not all of them. Only 70% of respondents were found responsible on all charges. And the  "penalties" ranged widely—from "education" to expulsion. As the Report states:

"When the threshold was met, findings of responsibility on all charges occurred in 70 percent of processes. In the remaining processes, the responding party was found responsible for some but not all of the conduct charges. Sanctions have ranged from deferred probation and education to dismissal …."

In addition, these cases included all forms of potential sex-based misconduct—not only sexual assault, but also discrimination, harassment, retaliation, stalking, and/or intimate partner violence.

I would further note that disciplinary hearings in approximately 10 cases is not a statistically significant number from which this court can make any kind of conclusion about gender bias. Finally, we have no information regarding the gender breakdown between who was found responsible and who was not…. Without allegations that accused students who are male are found guilty more frequently than accused students who are female, Doe has failed to allege any pattern of gender bias….

Thanks to Howard Bashman (How Appealing) for the pointer.


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  1. “…the federal Department of Education’s Office of Civil Rights was engaged in “a systemic investigation of the College’s policies, procedures, and practices with respect to its sexual harassment and sexual assault complaint process.”

    So, basically, the school was finding students guilty on little or no evidence to make Obama’s Secretary of Education happy.

  2. If the allegations are even close to accurate, school’s conduct is morally indefensible. But I do share the dissent’s concerns about the adequacy of a showing of sex discrimination.

    1. Maybe he won’t succeed in his claims. That’s what discovery is for. But, given all the allegations, it seems there’s sufficient allegations that, taken as true and construed in favor of the plaintiff, would meet that threshold.

      Or, stated another way, concerns or not, courts routinely let far more dubious claims, including claims of discrimination, go forward.

    2. I’m no fan of these kangaroo courts… but I agree. The dissent has very strong logic on its side to indicate that most of the sexual bias is presumed rather than proven.

      However… I think there may be some room for claiming systemic sexism on the grounds of disparate impact. Normally I do not buy disparate impact as a sufficient proof of bias because normally the variance is not unbelievably beyond what could potentially be real. However, if the outcome is so egregious then perhaps you do have proof. If the policy yields a pool of defendants that are well over 90% male… then perhaps there is something systemically wrong with the system. Per a 2010 CDC study there exists a near 1:1 rate of male/female victims of sexual violence (it is very new that definitions do not color the crime as only occurring with a female victim… for example rape was officially classified many police departments and the FBI as an incident in which a woman was penetrated… which is why older stats paint a picture of only women as the primary victim of sex crimes). To think that the university is a closed system that yields drastically different results in the victim breakdown than the rest of the world seems to indicate a problem.

      Here is an interesting article from Slate about the prevalence of male victims of sex crimes. And yes, a large number of male victims will likely also have male perpetrators, but the existence of female perpetrators is FAR from zero and should yield a very different pool of defendants in these college tribunals.

      1. At this point in the trial, yes, most of the bias is still presumed and not proven. From what I can tell, they haven’t even completed discovery yet, much less reached jury decisions on the actual facts. The dissent has a few good points about sloppy reasoning on the part of the majority but the standard for a motion to dismiss requires the court to assume that all the plaintiff’s allegations are true and to interpret all ambiguity in the plaintiff’s favor. Whether the plaintiff can make any of the allegations stick is a question for the trial, not for a motion to dismiss.

        1. But he still has to make allegations that, if true, would establish a viable claim of sex discrimination. And unless bad treatment is enough, in and of itself, to establish that—and my understanding of this area of the law is that it’s not—I’m not sure that he’s actually made out a case.

          1. Disparate impact sauce for the goose is sauce for the gander.

            1. Could you refresh my memory? It’s been a while, but I thought that disparate impact wasn’t alone sufficient to prove a discrimination claim.

              1. Yes, but. In Griggs v Duke Power the seminal disperate impact case, the something extra required was that Duke showed that it’s employment regulations that caused a disperate impact were necessary to fulfill the functions of the job.

                So extrapolating to this case if disperate impact is found then Oberlin has to justify the that regulations that are causing a disperate impact are necessary to fulfill a legitimate purpose.

                In this case it might be difficult to prove because it’s not really the regulations that are causing the impact, it’s that they are not applying them properly. The regulations on incapacitation look fair but they are applied differently to women, which is causing a disperate impact on male conviction rates.

      2. “but the existence of female perpetrators is FAR from zero and should yield a very different pool of defendants in these college tribunals.”

        Particularly when the male is truly incapacitated — passed out drunk.
        I’ve seen this in higher ed.

        1. I’d be much more inclined to believe your clam if you hadn’t included the second sentence.

          1. On one occasion, I was asked to assist by an undergrad who reported that a female student was undressing his incapacitated roommate, who was clearly asking her not to do it.

            (I just realized that it was Room 101…)

    3. “But I do share the dissent’s concerns about the adequacy of a showing of sex discrimination.”

      Whatever happened to disparate impact?
      They aren’t subjected accused female students to such slipshod procedures…

    4. Agree. Incompetence is well-proven; but where’s the sex discrimination?

      1. Right in front of you, in your face.

        The dissent suffers from crappy ratiocination.

        1. Your “explanation” is about as useful as the decision.

    5. But the whole point of the analysis on a motion to dismiss is to decide whether the plaintiff’s allegations allege a violation of law.

      The allegations at this stage are presumed true and inferences made in their favor. There hasn’t been any evidence yet.

      That’s the whole point of this analysis.

  3. Do they have any money left?

    1. The name & logos must be worth something — Pan Am Airways went bankrupt but a New England railroad bought the name, logo, and trademark shade of blue and is now known as Pan Am Railways with blue locomotives.


  4. Riamondo seems to be a piece of work.

    1. There are so many like her in higher education…..

  5. I’d had faint hopes that Oberlin’s recent curbstompings meant a turned corner on egregiously Woke bullshit.

    Not so much now.

    1. In fairness, this incident occurred in early 2016 – before the recent curbstompings came down. Once the lawyers have the case, they have to defend it as best they can – even if they are defending practices that are no longer in practice.

      (Before you ask, no I don’t have any actual knowledge that Oberlin has changed its practices. I’m merely saying that this case is old enough that it can’t be used as evidence either way.)

  6. [The Oberlin] panel’s decision was arguably inexplicable.

    I think most things coming from Oberlin the that have made the news the past few years are inexplicable.

  7. Imagine a scenario where 100% of black students are found “responsible” at a university for violations of the student code of conduct. How skeptical will liberals be that the system is stacked against students because of the color of their skin? I think we all know the answer.

    But, when it isn’t a standard issue victim class liberals just lose all that concern. Funny how that works, eh?

    1. It has been alleged that an unreasonably high proportion of male students accused in these “proceedings” are black. I’ve never seen any documented support for the allegation, but some anecdotal evidence.

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