The Volokh Conspiracy
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Title IX, First Amendment, Religious Universities, and Alleged Blackmail
In yesterday's decision in Doe v. Dordt Univ., Judge C.J. Williams (N.D. Iowa) allowed much of Doe's unfair-Title-IX-discipline claim to go forward; the decision is long, but here's an excerpt to give the flavor of the dispute:
First, a reasonable jury could find that the undisputed evidence shows an articulable doubt as to the accuracy of proceeding's outcome based on the finding of sexual assault. "Courts should not second guess the disciplinary decisions that school administrators make." But Title IX precludes school administrators from rooting those disciplinary decisions in a gender-biased policies and procedures.
It is undisputed that A.D., a witness in Doe's proceeding, told Dean Taylor that she had been "made aware of the fact that [S.S.]," another witness, "ha[d] been blackmailing [another witness] involved in the investigation" and asked to meet with Dean Taylor. Doe also shared with investigators, including Dean Taylor, that he thought S.S. had an agenda against him and had instructed J.B. not to speak with him.
Doe stated that J.B. told him that S.S. threatened to report J.B.'s marijuana use if he did not testify against Doe in the Title IX investigation. Dean Taylor was also aware that S.S. had convinced J.B. to participate in the investigation after he initially did not want to.
Nevertheless, based on the undisputed evidence, the allegations of blackmail were not prioritized. Dean Taylor did not appear concerned with the blackmail reports, though he stated that blackmail might mean an innocent respondent, and did not recall taking any further steps to investigate the blackmail issue after the meeting with A.D. Further, the information about Doe's and A.D.'s disclosures were not included in the Investigative Summary or otherwise shared with the SLC for their consideration during deliberation. Additionally, because the investigators did not investigate the blackmail allegations and report their findings, Coordinator Wilson could not consider this information or mention it in his recommendations to the SLC.
Defendants argue that S.S.'s alleged blackmail was inconsequential to Doe's investigation and proceedings because S.S. only wanted J.B. to tell the truth. Defendants also argue that S.S. wanted Doe to be punished for his alcohol use. Given that S.S. gave the initial report that Doe sexually assaulted Roe, however, it is apparent that she knew his discipline would, at least possibly, be for violations other than alcohol. And because investigators did not mention the blackmail reports in the Investigative Summary, the SLC was not provided with reasons to believe that S.S. only wanted J.B. to tell the truth. Further, the SLC did not have the opportunity to ask Doe or anyone else about the blackmail. Although defendants argue that plaintiff has no evidence that S.S. pressured J.B. to lie to investigators, a reasonable jury could find that the very nature of blackmail implies that the person being blackmailed must do something the blackmailer wants or face negative consequences and that the circumstances thus call the accuracy of the investigation and Doe's discipline into question.
This fact is particularly troublesome in light of the undisputed fact that J.B. was the last person to see Doe and Roe before their sexual encounter and, thus, had key insight into Roe's level of intoxication. A reasonable jury could further find that a blackmailed party, faced with these negative consequences, might have a motive to state what the blackmailer wanted him to say, whether that statement was true, partially true, or entirely false.
Thus, a reasonable jury could find S.S.'s alleged blackmail of J.B. caused J.B. to possibly have a motive to lie during Doe's proceedings and that the SLC's inability to review this information creates an articulable doubt as to the accuracy of the proceeding's outcome.
Further, although defendants argue it is merely speculative that Roe had a motive to lie, the jury could reasonably infer from the undisputed facts that Roe possessed such a motive. According to the Handbook, violations of the sexual misconduct policy could constitute grounds for dismissal.
The Handbook also made it a conduct violation for students under the age of 21 to consume alcohol, meaning Roe could face discipline for her underage alcohol consumption in addition to sexual misconduct if the encounter was consensual. But it also provided amnesty for an alcohol violation for any student making a good faith report of sexual misconduct, whether as a student with a complaint or a witness.
It is also undisputed Roe did not initially believe she was raped, and did not report her rape, though she did proceed with the investigation as the reporting party. According to the Handbook's provisions, however, had she not reported or shared information about the sexual assault, she would be at risk for a misconduct violation that could get her dismissed from Dordt.
A reasonable jury could also find particular procedural flaws call into question the accuracy of Doe's sexual assault finding. For instance, Dean Taylor testified that Dordt's policies did not distinguish between inebriation, intoxication, and incapacitation, although Roe's alleged incapacity due to her consumption of alcohol was the only enumerated reason that would render her verbal consent invalid. Relevant factors to incapacity, including food consumption, intake of non-alcoholic fluids, timeline of consumption, and body weight, were also not considered during the process.
Additionally, several conflicts of interest were either not discussed at all or not shared with the SLC. Dean Taylor, who would become a lead investigator in Doe's case, informed Mark Volkers, who taught Roe, that Roe had been involved in a "traumatic incident" before Volkers was named as a member of Doe's SLC. During Roe's first interview, Dean Taylor believed he was serving in capacity as dean, making him Roe's caretaker, even though this interview was part of the active investigation in which Dean Taylor was an investigator.
Finally, S.S. was Chair Olson's student. Before S.S.'s former interview, S.S. and Chair Olson had a "vague" conversation about Roe's assault and the allegations against Doe, a conversation Chair Olson told S.S. was best not to mention at her formal interview. Considering S.S. was the student A.D. and Doe believed was blackmailing J.B., a reasonable jury could find Chair Olson's failure to disclose her relationship with S.S., this conversation, and her suggestion to not mention the conversation, were procedural conflicts and concerns that further call into question the accuracy of Doe's sexual assault finding.
In sum, the undisputed evidence could support a jury finding of articulable doubt as to the accuracy of the outcome of Doe's Title IX proceeding based on the finding of sexual assault….
[A] reasonable jury could find that the undisputed evidence shows particular circumstances showing gender bias were a motivating factor in the erroneous outcome….
And here's the court's reaction to the university's First Amendment defense:
Defendants cite the recent Supreme Court case Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020), for the principle that First Amendment insulates Dordt from incurring liability for discrimination when that alleged discrimination is founded on the university's religious beliefs and corresponding practices and policies….
The Court finds Our Lady of Guadalupe is inapposite to the case at issue here. There, the issue was employment discrimination and whether the teachers in question could be considered ministers for purposes of the ministerial exception to the First Amendment. The ministerial exception provides that "courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions." Here, the issue is sexual discrimination based on student discipline—not an employment dispute. Thus, the Court declines to find that Our Lady of Guadalupe shields defendants from liability as to its discrimination of Doe.
Congratulations to Adrienne Levy, Andrew Miltenberg, and Stuart Bernstein of Nesenoff & Miltenberg LLP, and to David Goldman of Babich Goldman, PC, who represented plaintiff.