Key Takeaways

• The Ninth Circuit’s recent decision in Schwake v. Arizona Board of Regents is the latest to highlight the need for fair process in college and university disciplinary proceedings involving sexual misconduct.

• Although some circuits have adopted various doctrinal tests to assess the viability of Title IX claims by an accused student, the Ninth Circuit joins the Seventh Circuit in asking whether that student “plausibly alleged” that an institution discriminated on the basis of sex — a standard the Court has described as “simpler.”

• College and universities alike should carefully examine the Department of Education’s recently issued Title IX regulations due to take effect on August 14th, to ensure that their policies and procedures both align with those regulations and are implemented fairly for both the accused and accuser.

Last week we highlighted the need for fairness in college and university disciplinary proceedings involving sexual misconduct allegations, as the Sixth Circuit recently held in Doe v. Oberlin College, 963 F.3d 580, 588 (6th Cir. 2020), as well as under the Department of Education’s recently-promulgated regulations that take effect August 14, 2020. Find our analysis here.

A day after our OnPoint, a unanimous Ninth Circuit panel became the latest to reverse a district court’s dismissal of a Title IX lawsuit brought by a male student accused of sexual misconduct. In Schwake v. Arizona Board of Regents, the Ninth Circuit held that a male student “plausibly alleged” gender bias in his Title IX claim against Arizona State University. In doing so, the Court rejected the district court’s determination that some of the student’s allegations were “conclusory” and that “a university’s aggressive response to sexual misconduct allegations is not evidence of gender bias.” Op. at 4. Taking a cue from the Seventh Circuit’s approach to Title IX claims, the Ninth Circuit announced a “far simpler standard” for such claims and declined to impose various “doctrinal tests” adopted and applied by certain other circuits. As such, and recognizing that Title IX claims are not subject to a “heightened pleading standard,” the panel held that the male student “plausibly alleged” two supporting theories that should have allowed his claim to survive. First, it found persuasive the allegation of background indicia of sex discrimination against the University, namely, “the pressure that the University faced concerning its handling of sexual misconduct complaints and gender-based decision-making against men in sexual misconduct disciplinary cases.” Op at 13. Second, the Court also invoked the procedural irregularities in the disciplinary proceedings against the student to revive the student’s Title IX claim. Op. at 16-20. Coupling these considerations, the Court concluded that the male student sufficiently pleaded a Title IX claim to survive a motion-to-dismiss challenge.

Specifically, as to the indicia of sex discrimination, the Ninth Circuit did not require a specific “level of detail” for the allegation of a pattern of biased decision-making, acknowledging that it could be “difficult for a plaintiff to know the full extent of alleged decisionmaking [sic] before discovery allows a plaintiff to unearth information controlled by a defendant.” Op. at 16. The Court also credited the student’s allegations of procedural irregularities in allowing the student’s complaint to proceed. Specifically, those irregularities included a professor publicly disclosing confidential details about the University’s investigation into the student as well as its outcome, all before the student could exercise his right to appeal. Additional irregularities included notice and due process-related violations during the actual proceeding, such as the school’s failure to provide written information about the complaint as well as the decision-maker’s failure to consider exculpatory evidence. Under the Ninth Circuit’s now-adopted “simpler” standard, the Court held that the district court should not have dismissed the student’s Title IX claim.

As we reported in our last OnPoint, with the Department of Education’s recently-issued Title IX regulations due to take effect in two weeks, institutions should ensure that their policies and procedures align with those regulations. School policies and procedures in this area must be fair and must also be implemented fairly both for the accused and the accuser. The federal courts of appeals are making clear that that they will accept nothing less.