The court denied Colgate’s motion for summary judgment on Plaintiff’s Title IX and breach of contract claims.
Plaintiff was expelled after being accused of sexual assault by a fellow student, Jane Roe, with whom he had sex several times over the course of a night. While a hearing panel found Plaintiff not responsible for most of Jane Roe’s allegations, they did find that Roe had been asleep and unable to consent to the third act of intercourse, which occurred in the middle of the night.
Plaintiff’s complaint alleged Title IX violations under both erroneous outcome and selective enforcement theories. To succeed on an erroneous outcome claim, a plaintiff must show both that there was articulable doubt as to the outcome of their disciplinary proceeding, and that gender bias was a motivating factor behind the erroneous outcome.
With regard to articulable doubt, the court assumed that “Plaintiff’s insistence that the third act of sexual intercourse was consensual creates a genuine dispute of material fact on the question of misconduct,” and moved to the question of gender bias. On that question, the court did not draw the bright-line distinction, employed by many other courts, between anti-accused bias and anti-male bias. Instead, the court held that the investigator’s failure to thoroughly investigate inconsistencies in Roe’s story, as well as the assistance she gave to police in investigating Plaintiff, provided evidence suggesting the investigator may have been biased against Plaintiff.
The court denied summary judgment on Plaintiff’s selective enforcement claim as well, using as a comparator a female student who in 2018 was found responsible for sexual assault but who was suspended, rather than expelled. The school tried to distinguish between the parties on the grounds that Plaintiff had been found responsible for non-consensual penetration and the female student had not, but the court held that she was still a “direct comparator” for selective enforcement purposes:
Due to biological differences between men and women, a female respondent could never be found responsible for this exact conduct. Thus, for purposes of Title IX selective enforcement litigation, the female respondent is a direct comparator to Plaintiff because they both were found responsible for “Sexual Assault” under the EGP definition. When considering the female respondent as a direct comparator, Plaintiff and she should have been assessed similar or equal penalties. Instead, the Hearing and Appeal Panelists assessed upon Plaintiff the harshest penalty of expulsion, meaning he could never return to Defendant’s university and he would have to disclose his expulsion when applying to attend other schools. The female respondent, however, could ultimately return as a student after two years.
The court also denied summary judgment on Plaintiff’s breach of contract claim. Noting that in New York, the relationship between a university and its students is contractual, the court held that Colgate may have acted arbitrarily and capriciously when it permitted an investigator who showed bias to conduct the investigation.