Title IX Due Process Applies to Private Schools

Timothy M. Burke, Manley Burke LPA, tburke@manleyburke.com

As is too often the case in issues of sexual assault, the facts in the following matter are clouded by alcohol and drug consumption. In Federal Court in Memphis, John Doe challenged Rhodes College’s decision to expel him just short of graduation. His suit argued that the college had violated Title IX, treating him unfairly as a result of his male gender.[1]

Doe and a friend, Z.W., were both Rhodes College football players and members of Sigma Alpha Epsilon (SAE). They attended a formal at SAE. Doe’s date was C.S. According to the court decision, C.S. “consumed a large quantity of alcohol, smoked marijuana and used cocaine.” C.S. became ill, vomited, went and in and out of consciousness and could not speak coherently. Doe asked C.S.’s friend, C.C., to come and pick her up. C.S. told C.C. “they raped me.” C.C. and D.P., C.S.’s roommate, tried to get an understanding of what happened, but the College’s Title IX investigative report describes C.S. as being “very non-responsive,” replying to questions posed by D.R. and C.C. by giving a thumbs up or thumbs down. At one point, when responding to the question of whether or not the guys had sex with her, she gave a thumbs down.

After the college published a notice that a sexual assault was reported on campus, a campus organization called “Culture of Consent” engaged in protests against the Rhodes football team and men’s fraternities. Ultimately, after the completion of the Title IX investigation, a hearing was held at which Doe and his teammate appeared and denied any wrongdoing. According to the court, C.S. did not attend or participate in the hearing and was not subject to any questioning by the decision-making panel or subject to cross-examination of any kind. No witness testimony supported C.S.’s contention through any form of direct evidence. No testimony placed plaintiff and his teammate alone with C.S. Every witness who was present at the SAE party testified that they were regularly in the presence of C.S. and did not witness any type of assault.

Curiously, though C.S. did not testify at the hearing, her attorney attended the hearing and throughout the hearing held a file that said “C.S. v. SAE.’”

Without any advance notice, the Title IX coordinator did introduce “one-page of a medical examination indicating that C.S. had superficial injuries to her rectum.”[2] Doe and Z.W. had no knowledge of that report in advance of the disciplinary hearing. Once in court, it was argued that the injuries were the kind that could occur in a variety of ways including, “hard stool, gastro-intestinal disorders, or consensual anal penetration.”[3] The college did present hearsay testimony from female witnesses about statements made by C.S. while she was still intoxicated.[4]

In his lawsuit, John Doe sought a temporary restraining order and a preliminary injunction prohibiting the College from expelling him. He also asked that the College be prohibited from denying him his diploma.

In considering whether to grant a temporary restraining order or a preliminary injunction, a court must consider four factors: (1) Is the Plaintiff likely to succeed on the merits; (2) will the Plaintiff suffer irreparable injury in the absence of an injunction; (3) will the injunction cause substantial harm to others; and (4) will the injunction serve the public interest. Considering the issue of the likelihood success on the merits, the court first looked at Title IX, which states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance.”[5]

Rhodes College is a private school. Therefore, it is important to recognize the court is considering John Doe’s case not under constitutional rights, because those do not apply to private schools, but instead under Title IX as a result of Rhodes receiving federal financial assistance. The court notes that one of the categories for finding a Title IX violation in a disciplinary hearing process is referred to as “erroneous outcome.” To succeed, the plaintiff must plead “sufficient facts to cast some articulable doubt on the accuracy of the outcome of the disciplinary hearing as well as a particularized causal connection between the flawed outcome and gender bias.” [6] The court had little trouble agreeing that Doe met the first element of an erroneous outcome claim because the college had determined plaintiff’s guilt without the disciplinary panel ever seeing or hearing any live testimony from C.S., and afforded Doe no opportunity to cross examine C.S. to determine credibility. The Court cited to a number of cases emphasizing that credibility should be tested through “some form of live questioning of the accuser in front of the fact-finder.”[7]

In this case, the court found that “patterns of decision-making” tended to show a gender bias that included the public attention from the protests and media posts of “culture of consent” and particularly the fact that the college “credited exclusively male to female testimony from C.S.’s witnesses and rejected all male testimony from plaintiff and/for his witnesses.”[8]

In the end, the court granted plaintiff’s temporary restraining order and preliminary injunction prohibiting the expulsion of the plaintiff but refused to enjoin the college from refusing to grant him a degree finding that the record demonstrated that plaintiff has not turned in at least one assignment, had grades that needed to be calculated and had other misconduct allegations that needed to be investigated and resolved. The court’s order of June 14, 2019, therefore simply ordered “defendant is hereby enjoined from enforcing its decision to expel plaintiff pending the outcome of this suit.”[9]

[1] John Doe v. Rhodes Coll., No. 2:19-CV-02336-JTF-tmp (W.D. Tenn. June 7, 2019).

[2] Id. at *5.

[3] Id.

[4] The description of the facts are as the court decision states them.

[5] 20 U.S.C. § 1682 (2).

[6] Id. at *7 (quoting Doe v. Miami Univ., 247 F. Supp. 3d 875, 886 (S.D. Ohio 2017)).

[7] Rhodes Coll., at *8.

[8] Id. at *10.

[9] Id. at 13.