Campus Due Process Litigation Tracker

Doe v. Rensselaer Polytechnic Institute, No. 1:20-cv-1185 (N.D.N.Y. Oct. 16, 2020)

School type: Private
State: New York
Federal Circuit: Second
Decision primarily favorable to: Student
Stage of litigation: Motion for TRO/preliminary injunction
Keywords: Selective enforcement, Title IX, 2020 Title IX regulations

The court granted Plaintiff’s motion for a preliminary injunction to halt RPI’s disciplinary proceedings.

This case stems from a January 2020 sexual encounter between two RPI students, the Plaintiff and a female student identified in court papers by the pseudonym Jane Roe. Plaintiff and Roe met on Tinder and had consensual sex a number of times. The relationship apparently soured after an incident in which Plaintiff took video of Roe getting dressed in his room. Although Plaintiff assured Roe that he had deleted the video, she subsequently asked him to come to her dorm room to discuss the incident. Plaintiff states that he was too drunk to drive that night, so he walked from his off-campus apartment to her room, where they consumed additional alcohol.

They both agree they had consensual sex that night, but their “narratives of their encounter that night and morning diverge at approximately 3:00 a.m.,” when they began to engage in sexual activity for a second time. Plaintiff alleges that he was extremely drunk and remembers only portions of the encounter, but that he remembers Roe pressuring him to engage in unprotected anal intercourse and to put his hands around her neck, things he claims caused him so much psychological damage that he was forced to take a medical leave from school. Roe, by contrast, alleges that Plaintiff put his hands around her neck in a non-sexual way during an argument, and also that he engaged in sexual activity with her without her consent.

Roe filed a Title IX complaint against Plaintiff in January 2020; Plaintiff filed a Title IX complaint against Roe in June 2020. Plaintiff was found responsible and his claim against Roe was dismissed. Plaintiff appealed RPI’s decision on August 11, 2020, and requested a hearing under university policy. While RPI adopted a new policy in August 2020 to comply with the Department of Education’s new Title IX regulations, the university informed Plaintiff that it would apply its 2018 policy in his case because, according to a blog post from the Department of Education’s Office for Civil Rights (OCR), the new regulations were not retroactive.

Plaintiff filed suit “alleging that RPI’s handling of his cross-complaint against Roe and its refusal to employ the 2020 policy amounted to sex discrimination in violation of Title IX,” and sought a preliminary injunction.

As a threshold matter, the court had to decide what type of injunction Plaintiff was seeking: a mandatory injunction (which compels the other party to do something, such as adjudicating Plaintiff’s case under the 2020 policy), or a prohibitive injunction (which prevents the other party from doing something while litigation is pending, such as adjudicating Plaintiff’s case at all.) A mandatory injunction “requires a showing of ‘a greater likelihood of success’ than for a prohibitive injunction.”

The court decided to treat it as a request for a prohibitive injunction, holding that “the imminent harm Plaintiff complains of — having his fate decided by an institution he claims is discriminating against him — would if anything be better prevented by freezing all proceedings against him than by allowing the alleged discriminator to go forward with its hearing, even with a few more procedural safeguards.”

To be entitled to a preliminary injunction in the Second Circuit, a party must show “(1) a likelihood of irreparable harm; (2) either a likelihood of success on the merits or sufficiently serious questions as to the merits plus a balance of hardships that tips decidedly in [the movant’s] favor; (3) that the balance of hardships tips in [the movant’s] favor regardless of the likelihood of success; and (4) that an injunction is in the public interest.”

The court first analyzed the likelihood of success on the merits and found that Plaintiff was likely to succeed on his claims that RPI had discriminated against him by choosing to use its 2018 policy and that RPI selectively enforced its policies by dismissing Plaintiff’s complaint while allowing Jane Roe’s to proceed.

The court first noted the applicable standard:

For a Title IX sex discrimination claim, the Second Circuit has ruled that a university runs afoul of the statute when it: “(1) takes an adverse action against a student or employee[;] (2) in response to allegations of sexual misconduct[;] (3) following a clearly irregular investigative or adjudicative process[; and] (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex[.]”

On the first prong, the court held that “a school’s conscious and voluntary choice to afford the plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.” Moreover, the court found that “Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process.” While the court acknowledged that Plaintiff had produced limited evidence, at this stage, that RPI faced significant criticism for its handling of sexual misconduct claims, the court found that even minimal evidence of pressure was sufficient when combined with the type of clear procedural irregularities present in this case.

RPI also argued that it was bound to follow OCR’s blog post “because it is bound to defer to an agency’s interpretations of regulations that it promulgates,” a principle known as “Auer deference” due to its origins in the Supreme Court case of Auer v. Robbins, 519 U.S. 452 (1997). The court disagreed, holding that OCR’s blog post on retroactivity was not the kind of “authoritative statement” entitled to Auer deference. Moreover, the court made clear that it did not favor RPI’s interpretation of OCR’s blog post because of the “logistical problems” it presents, noting that it would be

difficult for a school to provide any kind of timeframe for sunsetting its policies that predate the new Title IX rules when the anchoring principle keeping those policies alive is the hypothetical possibility that new sexual misconduct claims for sexual assaults that took place before August 14, 2020, could arise. The absurd—yet necessary— result of an institution following the OCR post’s guidance to the letter would be that school’s indefinite maintenance of an entire alternative procedure, perhaps behind a pane of glass labelled “Break in Case of Emergency,” just in case a claim of sexual assault allegedly occurring before August 14, 2020 should arise.

The court also found that Plaintiff had shown ample evidence of sex discrimination beyond RPI’s failure to apply the 2020 policy to his case. Among other things, in its decision finding Plaintiff responsible, “RPI specifically noted that [Plaintiff’s] complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe.” The court noted that neither of these requirements — that alcohol consumption be voluntary, or that an incapacitated person not be the initiator of sexual contact — was actually found in RPI’s 2018 policy, and that “Roe’s complaint arising out of the same encounter was not subjected to any of these fabricated requirements.” The court wrote,

[T]he female’s complaint proceeded without issue, the male’s was struck down in part on grounds not contemplated anywhere in the policy’s definition of consent. That inequitable treatment provides not inconsiderable evidence that gender was a motivating factor in RPI’s treatment of Doe.

The court also found that Plaintiff was likely to succeed on his selective enforcement claim, given that RPI treated two similarly situated individuals — Plaintiff and Roe, who brought complaints against one another arising from the same sexual encounter — dramatically differently, with the only notable difference between the two individuals being their gender.

Turning to the question of irreparable harm, the court held that Plaintiff would indeed suffer irreparable harm in the absence of an injunction. RPI argued that any harm to Plaintiff was speculative because he could not know the outcome of the disciplinary hearing, but the court rejected that argument in no uncertain terms: “It is the fear of gambling his future on a rigged game that Plaintiff asks to be freed from, not the fear of losing the game itself.”