Campus Due Process Litigation Tracker

Doe v. American University, No. 19-cv-03097 (D.D.C. Sept. 18, 2020)

School type: Private
State: District of Columbia
Federal Circuit: D.C.
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Breach of contract, Erroneous outcome, Single investigator, Title IX

The court denied American University’s motion to dismiss Plaintiff’s Title IX, DC Human Rights Act, and breach of contract claims, but dismissed Plaintiff’s negligence claim.

Plaintiff and his accuser, known in court documents by the pseudonym Jane Roe, had a sexual encounter in April 2016 after Roe consumed a marijuana brownie. The two parties’ accounts of the incident vary dramatically. While Plaintiff maintains that the brownie “did not appear to have a noticeable effect” on Roe and that she was an active participant in their physical activity, Roe alleges that she was almost completely incapacitated by the brownie. To complicate matters further, Roe did not bring her complaint until January 2019, more than 2.5 years after the incident.

At the time Roe brought her complaint, American utilized a “single investigator” model to resolve claims of sexual misconduct, in which “a single person conducts the investigation, makes findings of fact, and determines whether a violation has occurred.” The investigator found Plaintiff responsible for sexual misconduct, and he was suspended. He brought suit alleging Title IX sex discrimination, violations of the DC Human Rights Act for sex-based discrimination, breach of contract, and negligence.

The court noted that while courts have traditionally recognized four discrete theories under which an individual can challenge the outcome of a disciplinary proceeding under Title IX (including “erroneous outcome” and “selective enforcement”), several circuit courts — beginning with the Seventh Circuit in Doe v. Purdue University — had recently moved away from these “strict categorical tests” in favor of a more “straightforward” approach that simply asks whether the facts alleged “support a plausible inference” that the university discriminated against the student on the basis of sex.

The court “adopt[ed] the straightforward pleading standard set forth by the Seventh Circuit in Doe v. Purdue University” and, using this less doctrinal standard, found that Plaintiff had indeed alleged sufficient facts to support his claim of sex discrimination. Specifically, the court found that the investigator’s “credibility findings plausibly reflect bias based on sex”: the investigator singled out very minor inconsistencies in Plaintiff’s account, while ignoring very major ones in Roe’s account. The court also noted that there were “near-in-time” pressures on American to appear tough on sexual assault (campus protests, an open OCR investigation, and a viral op-ed in the student paper that led to donor pressure), something numerous courts have held is a relevant consideration in evaluating a Title IX claim when there are also allegations of investigator bias.

The court also allowed Plaintiff’s “disparate treatment” claim under the DC Human Rights Act to proceed, given that both parties had agreed it was closely tied to the Title IX claim. The court dismissed Plaintiff’s “disparate impact” claim, however, finding that Plaintiff had not provided evidence of a comparator group — i.e., female students accused of sexual misconduct — that was treated differently.

Plaintiff also alleged that American breached its contract with him in a number of ways, three of which the court found sufficient to survive the university’s motion to dismiss. At the time that the alleged assault occurred, the policy governing sexual misconduct claims at American included a requirement that complaints of sexual assault must be filed within one year absent a written request for an extension. Jane Roe made no such written request, and filed her complaint more than 2.5 years after the fact. However, at the time she filed her complaint, the governing policy no longer contained the statute of limitations. Plaintiff alleged that American violated its own policies by allowing Roe to bring her complaint more than a year after April 2016 without providing written notice. Holding that “[i]t would be premature for the court to decide at this stage whether Doe’s or the University’s interpretation of the 2016 Code is correct, or whether the 2019 version is controlling,” the court declined to dismiss Plaintiff’s breach of contract claim on this point. The court also allowed Plaintiff’s contract claims to proceed on his allegations that, in violation of university policy, American had denied him a “thorough” and “impartial” investigation and had prevented him from challenging members of the sanctioning panel for bias.