Football Players' Sex Discrimination Claim Over U Minnesota Sexual Assault Investigation Can Go Forward

From Does v. Regents of the Univ. of Minn., decided Tuesday by the Eighth Circuit (Judge Loken, joined by Chief Judge Smith and Judge Gruender):

As we are reviewing a Rule 12(b)(6) dismissal, we draw the following facts from the Amended Complaint, accepting all factual allegations as true and in the light most favorable to the Does to determine whether they state facially plausible claims. Thus, the following narrative is necessarily one-sided and favorable to the Does. We of course do not assume that the Does will be able to prove what they plausibly allege.

In the early morning of September 2, 2016, five University football players including JD1, JD2, JD4, and JD5 and a recruit engaged in consensual sex with Jane, a University cheerleader. The next day, Jane and her mother told Minneapolis Police these men had sexually assaulted her. Investigators opened a formal investigation and interviewed Jane, who told them her recollection was hazy but she recalled being assaulted by a number of players after consensual sex with JD1 and the recruit.

The investigators interviewed other witnesses, reviewed Jane's sexual assault exam, and spoke with the accused Does. They collected evidence, including two cell phone videos recorded by JD1 that show him, the recruit, and Jane involved in what the investigators described as consensual group sex.

At some point, Minneapolis Police informed University Athletic Director Mark Coyle that Jane had accused four players of sexual assault, prompting the University to suspend the players "because of optics." The suspension was lifted after the Hennepin County Attorney received the investigation's findings and declined to file charges.

Jane's allegations came to the attention of the University's Office of Equal Opportunity and Affirmative Action ("EOAA"), the campus department tasked with investigating complaints of student sexual misconduct. The EOAA opened an investigation. On September 23, Jane met with EOAA Assistant Director Tina Marisam, the investigator assigned to the case. Marisam had investigated complaints of sexual misconduct made against football players in 2015 and concluded the failure to corroborate those accusations was due to a cover-up by team members. At the close of the 2015 investigation, then-EOAA Director Kimberly Hewitt emailed then-Athletic Director Norwood Teague and University President Eric Kaler, warning them of a "concerning pattern" of misconduct among football players which posed a risk of future sexual violence and harassment of women on campus.

During her initial interview with Marisam, Jane presented a more detailed version of the events of September 2 than she had provided the police, including a more concrete description of how the alleged assaults involving JD1-5 occurred. This interview led Marisam to investigate JD6-11 who were in the apartment when the alleged assaults occurred. Jane participated in six total interviews with Marisam, who permitted Jane to refine her accusations in response to the Does' individual statements. Marisam allowed only Jane to review a draft narrative for accuracy.

On October 11, 2016, Marisam sent emails to JD7-10 requesting they come in for interviews. She did not disclose they were targets of an investigation into suspected misconduct. In contrast with her multiple interactions with Jane, Marisam only met once with each accused Doe for fifteen to thirty minutes. Marisam did not record the Does' statements, allow them to review or respond to Jane's statements or the statements from other witnesses, or allow them to confirm the accuracy of Marisam's summary of their statements.

Marisam also contacted JD10's girlfriend, a white hockey player, because she was staying with JD10 on September 2. When JD10's girlfriend did not respond to Marisam's interview request, Marisam did not pursue this lead further, unlike her treatment of the Does who did not initially respond to interview requests. At the EOAA's behest, athletic department officials warned the Does that their scholarships were at risk if they did not cooperate with the investigation.

Marisam summarized her findings in a report which the EOAA submitted to the Office of Student Conduct and Academic Integrity on December 7. The report recommended (i) expelling JD1-5 for sexually assaulting or harassing Jane; (ii) suspending JD7, 8, 10, and 11 for one year for sexually harassing Jane; and (iii) placing JD9 on probation for providing false statements about his whereabouts on September 2. It concluded JD6 did not violate the Student Conduct Code.

After receiving the EOAA report, President Kaler ordered Coyle to suspend JD1-5 and 7-11 from the football team, preventing them from participating in an upcoming bowl game. Kaler released public statements regarding the suspensions, assuring the public they were based on facts and University values and served the goal of ensuring a safe campus climate for female students.

Reacting to the suspensions, the football team boycotted the pending bowl game to protest a perceived lack of due process afforded the accused players. The boycott prompted criticism from all quarters. Some echoed the team's concerns; others argued the University was obligated to take a tough stance against student sexual misconduct. In response, Kaler, Coyle, and University Regents met with team members. Kaler offered to lift the suspensions of JD7-11 if they admitted to the accuracy of the report's findings. The players rejected that offer, but the team ended its boycott based on assurances that the accused Does would receive a fair hearing.

Several weeks later, Kaler issued statements to the Minneapolis Star Tribune and St. Paul Pioneer Press declaring that "[t]here's no due process associated with athletic suspensions," and that the University's increased sexual harassment training "didn't seem to make the point" with the Does. The Amended Complaint alleges that Kaler's statements fostered a "lynch mob" mentality towards the Does and contributed to a campus climate of suspicion and hostility toward African-American males. Contributing to this "poisoned well" was public criticism of the University and top-level administrators for alleged mishandling of prior sexual assault complaints by women against white administrators and coaches, and a 2011 "Dear Colleague" letter from the U.S. Department of Education threatening universities with investigations and lost funding if they deficiently investigate campus sexual assaults.

The Amended Complaint alleges the EOAA report contained several troubling features. It found Jane more credible by emphasizing minor inconsistencies in the Does' statements, while minimizing or ignoring her inconsistent statements. It did not recommend punishing Jane for having consensual sex with the underage recruit or for falsely accusing JD6 of sexual assault. It attributed statements to JD11, which he alleges he never made. Finally, the report criticized the Does' purported attempts to conceal evidence from the investigation, while neglecting to mention that Jane withheld evidence from Marisam, including the results of her sexual assault examination and the video of her, JD1, and the recruit engaging in consensual sex.

Dissatisfied with the report's conclusions and their sanctions, the Does invoked the University's due process protections for students accused of sexual misconduct and requested a hearing before the Student Sexual Misconduct Subcommittee ("SSMS"). Comprised of specially trained faculty, academic professionals and students, the SSMS adjudicates sexual misconduct charges involving University students. SSMS panels consist of a non-voting chair and three voting panel members who hear from the accused, consider documentary evidence, and listen to live witness testimony. Panel members and counsel for the accused and the University are empowered to question witnesses.

After a hearing on January 26 and 27, 2017, the SSMS panel concluded: (i) JD1-5 (the players who admitted to having sex with Jane) sexually assaulted or harassed Jane; (ii) there was insufficient evidence JD7-9 and 11 committed sexual misconduct; and (iii) JD10 sexually harassed Jane. The players found guilty appealed to the University provost who affirmed the panel findings as to JD1-5 but reversed the harassment finding against JD10. There were no further appeals within the University or to the Minnesota Court of Appeals….

The Eighth Circuit allowed the case to go forward based on claims of sex discrimination:.

[T]he Does' lengthy Amended Complaint alleges a number of circumstances which, "taken together, are sufficient to support a plausible claim that the University discriminated against [the Does] on the basis of sex." In reaching this conclusion, we must of course assume all factual allegations are true and draw reasonable inferences in the Does' favor.

First, the Does allege that the University was biased against them because of external pressures from the campus community and the federal government over a perceived lack of diligence in investigating and expelling students accused of sexual assault. The Does allege that, in response to the football team's boycott, various groups on campus urged officials to take a tougher stance against campus sexual misconduct which pressured University officials to corroborate Jane's accusations.

President Kaler's public statements before the SSMS hearing further "poisoned the well" and exacerbated biased attitudes towards male African-American athletes. Additional pressure came from past criticism of President Kaler and the University for an inept response to former A.D. Teague's sexual harassment of multiple staff members. That these pressures influenced the University in this case can be inferred from A.D. Coyle's comment that the players should be suspended when initially accused "because of optics."

In addition, the Department of Education's 2011 "Dear Colleague" letter had criticized federally-funded universities for failing to properly investigate and adjudicate sexual misconduct allegations and adopted changes affecting misconduct investigations including: expanding the definition of sexual harassment, requiring schools to prioritize the investigation of misconduct complaints, and using a "more likely than not" burden of proof in adjudicating those complaints. Institutions that failed to comply risked investigations by the Department's Office of Civil Rights ("OCR") and the potential loss of federal funding. The Does allege this potential loss of millions of dollars motivated the University to demonstrate Title IX compliance by skewing investigations against males accused of sexual assault and harassment.

We agree with other circuits that the "Dear Colleague" letter, standing alone, "is obviously not enough to get [the Does] over the plausibility line." But external pressure from public attention and the threatened loss of federal funding "provides a backdrop that, when combined with other circumstantial evidence of bias in [the Does'] specific proceeding, gives rise to a plausible claim" of intentional bias when a female student accused male athletes of sexual misconduct.

Second, the Does allege historical facts that reinforce the inference of bias in this specific proceeding. In 2014, the OCR investigated the University for potential Title IX violations after charges were lodged that the University discriminated against female athletes by denying them equal funding and resources and by tolerating a male gymnastics coach's sexual harassment of a female gymnast. The University settled the harassment charge by paying the female gymnast $250,000. It is "entirely plausible" that the specter of another federal investigation of potential Title IX violations could motivate the University to discriminate against male athletes accused of sexual misconduct to demonstrate ongoing compliance with Title IX.

More specifically, the Amended Complaint alleges internal pressure on University officials to charge male football players with sexual misconduct. It is alleged that investigator Marisam believed football players had covered-up sexual misconduct complaints during a 2015 investigation, motivating her to punish as many players as possible in response to Jane's accusations. After the 2015 investigation, Director Hewitt opined to Kaler and Teague that there was a "concerning pattern" of behavior among the football team, and warned that the players posed an increased risk of committing sexual assault or harassment in the future.

It is reasonable to infer that investigator Marisam was aware of and agreed with these sentiments. These allegations support the inference that the University, and specifically its investigators, discriminated against the Does on the basis of sex….

In [a prior case], we concluded that allegations of "a dubious decision" in the misconduct proceeding at issue "taken against the backdrop of substantial pressure on the University to demonstrate that it was responsive to female complainants" were sufficient to state a discrimination claim under Title IX. Here, the external pressures were if anything greater, and the detailed allegations of investigator bias and dubious investigative procedures in these particular proceedings lend sufficient credence to the inference of discrimination "on the basis of sex." Considering as we must the totality of the allegations in the Amended Complaint, we conclude the Does stated plausible claims that the University discriminated against them on the basis of sex during the misconduct investigation and disciplinary proceedings.

The district court concluded that a university's bias in favor of the victims of sexual assault does not establish a reasonable inference of bias against male students …. While the circumstances here also give rise to a plausible inference of bias in favor of sexual assault victims rather than against males, "[s]ex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed." Thus, we reverse the district court's dismissal of the Does' Title IX discrimination claims….

The court rejects, however, the plaintiffs' race discrimination claim:

The district court concluded that, in this type of case, to prove the University's discriminatory intent, the Does must establish "that they were treated differently from others similarly situated." Neither party challenges that conclusion on appeal.

Alleged comparators must be "similarly situated in all relevant aspects." "In a case of alleged discriminatory discipline, such as this, the [Does] must [plausibly plead] that the acts of other[s] … who were not disciplined or were disciplined less severely were of 'comparable seriousness' to [their] infraction." Count Two of the Amended Complaint alleges in conclusory fashion that the University "treated Plaintiffs less favorably in the investigation and discipline than the University had treated persons of a different race under similar circumstances." The Amended Complaint's nearly forty pages of "Facts" add little of substance to this legal conclusion. It alleges (i) that the University "turned a blind eye" to allegations in 2014 and 2015 of sexual harassment of women athletes and other women by the white male Athletic Director, by a white male volunteer coach, and by "another highranking Athletics Department male administrator"; and (ii) that the EOAA did not investigate Jane, who is white, and "a white male football player" present in the apartment that morning….

[T]he Amended Complaint "does not allege facts showing that similarly situated [alleged comparators] were treated differently." University employees are not similarly situated to students because employees are "treated according to a different behavioral standard." Regarding the alleged disparate treatment of Jane, it goes almost without saying that a sexual assault complainant and those she accuses of sexual assault are "not similarly situated as complainants." As for the white football player, Jane's hazy recall that "he may have been involved" in the September 2 incident does not show that he was similarly situated. The EOAA investigation determined he was not guilty of sanctionable sexual misconduct and also determined that JD6, an African-American player, did not violate the Student Conduct Code.

In the district court, the Does argued "that the appropriate comparator is any non-African-American male accused of sexual assault, regardless of his role in the University." Like the district court, we reject this contention…. ["I]if we allow a complaint like this to proceed in the context of student discipline, every conclusory selective-enforcement claim would lead to discovery concerning the entire disciplinary history of a college and then to a confusing, unmanageable and ultimately incoherent retrial of every disciplinary decision, including decisions not to investigate.["]