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Bethany A. Corbina

Abstract from: Bethany A. Corbina, Riding the Wave or Drowning?: an Analysis of Gender Bias and Twombly/iqbal in Title IX Accused Student Lawsuits, 85 Fordham Law Review 2665 - 2715, 2668 - 2670, 2714 - 2715 (May, 2017) (321 Footnotes Omitted).


The evening of October 11, 2014, started with a party. When John, a Brown University sophomore, encountered Jane at the lively event, the two left for what John termed “a consensual hook up.” Jane called it sexual assault. Approximately one week later, Jane made a “serious allegation of sexual misconduct” to university officials, and the university issued a no-contact order against John. John received written notice on November 5, 2014, that the university had formally charged him with four student code violations. Although John provided Brown with a list of witnesses, Brown did not contact any of these individuals prior to initiating the charges. Four days before the student conduct hearing, Brown gave John access to an eighty-page packet of “critical evidence and procedural information.” The packet did not include favorable character statements of John. Brown further appointed Richard Bova, senior associate dean of residential and dining services, as a substitute member of the panel the day before the hearing. This last-minute substitution deprived John of an opportunity to screen the new panelist for conflicts of interest. Such screening would have revealed that Bova was previously accused in a federal lawsuit of violating a Brown student's rights in a sexual misconduct investigation. During the disciplinary hearing, the panelists refused to cross-examine Jane about the multiple inconsistencies in her interviews, complaint, and subsequent retellings of the events. Additionally, the disciplinary panel stopped John's testimony only a few seconds into his midpoint statement. *2668 In contrast to the panel's twenty minutes of calmly cross-examining Jane, John endured ninety minutes of cross-examination in a “caustic tone.” The panel further failed to investigate the motives and biases of Jane's witnesses. Unsurprisingly, the panel found John “responsible” for all four charges and suspended him for two and a half years. In the aftermath of his suspension, John filed a federal lawsuit with the District of Rhode Island on April 13, 2015. The gravamen of John's complaint was a reverse Title IX claim for erroneous outcome and deliberate indifference. Specifically, John argued that his suspension was “symptomatic of a broader culture of inherent, systematic and intentional gender bias against male students accused of sexual misconduct.” In particular, John alleged that Brown's policies exhibited gender bias because male perpetrators accused of sexual assault are “invariably found guilty.” As a result of this bias, John argued that male students are denied fair and impartial procedures during the disciplinary process. For many suspected perpetrators of campus sexual assault, John's experience is exceedingly common. In 2011, the Department of Education's Office for Civil Rights (OCR) issued a “Dear Colleague” letter (“the 2011 DCL”) to universities explaining that Title IX of the Education Amendments of 1972 prohibits sexual assault as a form of sexual harassment. The 2011 DCL clarified the Department of Education's interpretation of Title IX, addressing such topics as proper notice and appeal procedures, use of a preponderance of the evidence standard, and development of interim protection for sexual assault victims. The 2011 DCL reiterated that a university's failure to comply with these procedures could result in a Title IX investigation and loss of federal funding. OCR's “guidance” and its corresponding ramifications have pressured universities to crack down on sexual assault and prosecute those crimes zealously through the disciplinary system. While this outcome received widespread praise for destigmatizing *2669 sexual violence, hundreds of accused perpetrators are arguing that higher education sexual assault procedures “trample” on their federal rights. These students cite myriad ways in which universities favor victims of sexual assault throughout the disciplinary process, to the point of impeding justice. By perceiving male rights as subordinate to OCR's policy agenda, universities may inadvertently deny sexual assault perpetrators due process and fairness.

The perceived lack of justice in university disciplinary proceedings has prompted many accused assailants to seek vindication of their rights in the judicial system. Hundreds of males accused of sexual violence are suing their universities for gender discrimination. These students are unwilling to accept the perceived denial of their civil rights and destruction of their academic future based on an allegedly biased system. Filing suit under Title IX is a political declaration that male rights matter and a final chance to reverse disciplinary sanctions.

Regrettably, when universities shut the doors of justice, the judiciary seems to bolt the lock. Through a misinterpretation of plausibility pleading, a majority of district courts improperly dismiss reverse Title IX cases and block the final avenue of relief for accused students. These courts read Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as requiring particularized factual evidence that the flawed disciplinary proceeding was a direct result of the student's gender. Rather than evaluating the complaint as a whole, these courts mandate specific factual data on the causal element *2670 at the outset of the lawsuit. This framework creates an insurmountable pleading hurdle that plaintiffs cannot overcome. While the majority's approach to dismissal may be appropriate if Twombly and Iqbal existed in isolation, courts improperly ignore the third leg of the stool: Swierkiewicz v. Sorema N.A. Swierkiewicz, which was cited favorably in Twombly, expressly holds that the elements of a prima facie case are evidentiary in nature and “should not be transposed into a rigid pleading” structure. Rather, discrimination claims should be judged only based on the plausibility of the complaint in its entirety. Because the causal link between discriminatory conduct and gender bias is part of the prima facie framework, the complaint does not need evidentiary backing or extensive factual allegations at the pleading stage. This Article analyzes the inability of accused students to access justice through both educational disciplinary proceedings and courts of law. In particular, this Article proposes a more flexible reverse Title IX pleading scheme in line with Twombly, Iqbal, and Swierkiewicz and advocates for limited discovery where a court determines that a plaintiff's complaint lacks factual specificity for the causation element.

To explore these issues, this Article is divided into four parts.

Part I offers an overview of campus sexual assault, Title IX, and OCR's interpretive guidance, focusing particularly on the 2011 DCL. Part I then highlights a university's investigatory and adjudicatory roles in sexual assault disciplinary proceedings, details the most common due process violations, and offers an explanation for why these breaches of due process occur.

Part II describes accused students' use of reverse Title IX lawsuits to protest this deprivation of rights.

Part III builds on this foundation and delves into an analysis of the current pleading standards by examining the parameters of Twombly, Iqbal, and Swierkiewicz. Part III also explores how plausibility pleading has altered the motion to dismiss landscape for reverse sex discrimination claims and investigates the majority and minority approaches to reverse Title IX complaints. Additionally, Part III provides the first empirical analysis of dismissal trends in reverse Title IX cases.

Finally, Part *2671 IV argues that the majority's dismissal of reverse Title IX lawsuits contravenes Swierkiewicz and proposes a more flexible pleading approach for the causation element. This relaxed pleading framework not only satisfies the plausibility requirement but also prevents accused perpetrators from having to establish the evidentiary value of their claims at the outset of the lawsuit.

* * *

The climate of Title IX sexual assault litigation is changing. Previously viewed as a victim protection statute, Title IX is increasingly being invoked by accused perpetrators of sexual violence to demand fair and equitable disciplinary proceedings. This influx of reverse Title IX litigation comes on the heels of OCR's updated sexual assault guidelines. The 2011 DCL forced *2715 universities to lower the standard of proof for sexual misconduct cases and mandated adoption of decidedly provictim policies. While this provictim stance sought to eliminate educational indifference to sexual assault, it neglected to protect the basic due process rights of accused perpetrators. By threatening to withdraw federal funding for noncompliance, OCR unwittingly created a discriminatory environment against alleged male perpetrators. Accused assailants frequently endure skewed investigatory and adjudicatory processes that lack basic truth-seeking structures. In this manner, OCR has sacrificed fairness and due process to support its policy agenda. As a result, males claim that they are invariably found guilty of sexual violence.

Unfortunately for accused students, the doors of justice have not only been shut by OCR and universities, but they have also been locked by district courts. Accused students seeking vindication of their rights are routinely turned away from the courthouse at the motion to dismiss stage. The empirical analysis illustrates that the majority of courts apply an inappropriately high pleading standard that results in dismissal of almost all reverse Title IX actions. Rather than viewing complaints as a whole and recognizing that a “because of” causal statement is both factual and legal, courts improperly require plaintiffs to showcase evidence of discrimination at the outset of the lawsuit. This hurdle is impossible to satisfy at the pleading stage and results in an unfortunate catch-22 scenario.

To remedy this flawed pleading structure, a flexible causal standard must be implemented that complies with Twombly, Iqbal, and Swierkiewicz. This new pleading regime encompasses two elements: (1) a simple causal allegation that the sex discrimination occurred because of the accused perpetrator's gender and (2) limited factual circumstances that support a general finding of bias. The second prong does not require detailed factual or evidentiary support; rather, allegations of implicit bias, general university or public policy shifts towards provictim procedures, and disciplinary irregularities compared with nonsexual misconduct violations are sufficient. By altering the causal pleading framework in this manner, courts ensure that reverse Title IX complaints can ride the wave to discovery instead of drowning for insufficient evidence.

Law Clerk, U.S. Court of Appeals for the District of Columbia (2016-2017); Adjunct Professor of Law, Wake Forest University School of Law (2016)