IzJanae Soler | Can a Plaintiff Demonstrate Title IX Sex Discrimination by Showing an Erroneous Outcome?

Background

A female St. John’s University (SJU) student Jane Doe (Doe) filed a complaint with the university that accused the plaintiff, John Roe, of sexually assaulting her while the two were studying abroad in Paris, which was a potential violation of the SJU’s sexual misconduct policy. SJU procedure is that those accused of misconduct undergo a “Conduct Hearing” (Hearing) overseen by a “Conduct Board” (Board), during which the Board will look at the available evidence relating to the accusation. The evidentiary standard at a Hearing is preponderance of the evidence, which is far lower than the one applied to criminal sexual assault charges, and there is no requirement for Hearings to strictly abide by the legal rules of evidence.

Roe underwent a Hearing that ultimately concluded that he had violated the policy prohibiting non-consensual sexual contact due to a lack of “affirmative consent” by Doe when he touched her, and Doe was given semester suspension; Doe appealed the suspension to the “Conduct Appeals Board,” who affirmed the Board’s decision. Several months later, Roe sued in the United States District Court for the Eastern District of New York, alleging St. John’s violated his rights under Title IX. The basis of Roe’s claim was that SJU finding him in violation of the sexual misconduct policy was, on some level, because he was a male; he tried to support this claim primarily upon the erroneous outcome theory of university Title IX liability.

To successfully plead an erroneous outcome, plaintiff must allege facts “sufficient to cast some articulable doubt” on the outcome and allege circumstances suggesting gender bias motivated that outcome. A court granted SJU’s motion to dismiss, holding that Roe had failed to properly make a claim pursuant to Federal Rule 12(b)(6). Roe appealed to the Second Circuit.

Issue

Can a plaintiff alleging sex discrimination occurred in a university disciplinary proceeding under Title IX establish their claim by a showing of erroneous outcome?

The Split

Second Circuit

The Second Circuit precedent has held that erroneous outcome theory is one method of establishing a Title IX claim of gender discrimination and requires one to provide some level of doubt as to the accuracy of the outcome as well as showing that there is a potential causal connection between the outcome and gender bias. In this case, the Second Circuit held that while Roe did manage cast a level of doubt upon the accuracy of the outcome, he failed in showing that SJU reached the outcome due to gender bias; thus, he failed to establish a Title IX claim on erroneous outcome theory. The Court explained that even if Roe’s version of the events was completely accurate and SJU was thus unequivocally erroneous in its conclusion, precedent holds an erroneous conclusion alone does not indicate gender bias; “…an allegation of an erroneous outcome, absent any additional allegations of fact indicating bias on account of sex, does not state a claim under Title IX.” Roe v. St. John's University, 91 F.4th 643, 654 (2d Cir. 2024).

Roe did attempt to assert that several things could lead to a possible inference of gender bias, but the primary assertions related to procedural irregularities on behalf of SJU were firmly rejected by the Court. One of Roe’s allegations was that SJU mishandled the whole situation, but the Court has held in the past that a university accused of poorly handling disciplinary or other proceedings “does not automatically permit a factfinder to reasonably infer that a university has committed sex discrimination.” Id. Even allegations of “potentially serious flaws” in the procedure may fail to prove a Title IX violation if the plaintiff does not point to specific ways in which the investigation was biased. The Court found Roe’s allegations of procedural irregularities were ultimately an allegation that SJU handled the situation poorly with no real evidence of a causal connection between an anti-male bias and the alleged mishandling of the case.

Ninth Circuit

By contrast, the Ninth Circuit has held that to establish a claim under Title IX, one does not need to satisfy any test, including erroneous outcome; instead, the facts alleged by plaintiff, if true, must support a “plausible inference that the university discriminated… on the basis of sex,” and sex discrimination does not need to be the only or most plausible explanation for the alleged erroneous outcome done in order for a Title IX case to proceed. Doe v. Regents of the University of California, 23 F.4th 930, 932 (9th Cir. 2022). Thus, the pleading standard in the Ninth Circuit is far lower, and an erroneous outcome alone can support an inference of bias even if a causal link between it and gender bias is not established.

Alongside the pleading standard, the Ninth Circuit’s approach to procedural irregularities is far more relaxed compared to the Second Circuit, and the Ninth’s jurisprudence has held that procedural irregularities can support an inference of sex bias if they are numerous enough. In a similar case involving another male student accused of sexual assault, the Court stated that “accumulation of procedural irregularities all disfavoring a male respondent begins to look like a biased proceeding,” especially if combined with similar allegations of biased incidents or background indicia of sex discrimination. Id.

To summarize, the Ninth Circuit allows claims of erroneous conclusion and flawed procedures alone to sufficiently establish a Title IX violation. Instead of an “erroneous outcome” or other Title IX test, the Court will determine if the facts alleged by plaintiff, if true, would support a plausible inference of sex-based discrimination. This test allows a claim of erroneous conclusion to support an inference of gender bias without the plaintiff needing to demonstrate a causal connection between the erroneous conclusion and gender bias; further, the test allows for a pattern of procedural irregularities disadvantaging a male respondent to support an inference of gender bias, especially in conjunction with other factors.

Looking Forward

It is difficult to say what exactly will be the predominant interpretation in the future. However, it is more likely that the Second Circuit’s interpretation is more likely to “win out” overall due to it being a more cautious interpretation of Title IX claims. While the Ninth Circuit’s interpretation is more flexible and allows more people to have their day in court, such flexibility is not without peril. Flawed procedures and an erroneous outcome against a particular person, while concerning, may not automatically indicate some form of discrimination.

It could come down to a matter of whether a court wants plaintiffs to have more or less ability to state a Title IX claim. If a court wants to give plaintiffs more latitude in stating the claim, they would be more likely to use the Ninth Circuit’s interpretation; if a court wants to give plaintiffs less latitude, they would be more likely to use the Second Circuit’s interpretation.