The irony is palpable: In the name of enforcing Title IX’s mandate against sex discrimination, Loyola University Chicago may have violated it by discriminating against a student accused of sexual assault because he happens to be male. If Loyola did so, the school trampled the student’s due process rights, ultimately expelling him from the school based on evidence and procedures that would never hold up in a real courtroom.
Unfortunately, this isn’t uncommon: FIRE has seen a rising trend of illegal and unconstitutional anti-male discrimination under the guise of Title IX enforcement at universities across the country. And though new federal regulations passed in 2020 improved due process for Title IX discipline since the 2016 events in this case, the current Department of Education is proposing to roll back almost all the 2020 improvements. Worse, most schools still lack guarantees of basic fairness — like a presumption of innocence — for other school disciplinary hearings. So last week, FIRE filed an amicus curiae brief in the U.S. Court of Appeals for the Seventh Circuit, asking the court to let the student take his sex discrimination claims against Loyola to trial.
In this case, which uses anonymous names for privacy, the plaintiff John Doe had sex with a female student, Jane Roe. Several months later, Jane filed a sexual assault complaint against John with the Title IX office at Loyola, where they were both undergraduates. John claimed it was a consensual encounter, while Jane claimed she was coerced. After an investigation, hearing, and appeal, the school administrative board reviewing the case ultimately found Jane more credible based on its determination that her accounts of the event were consistent over time. By contrast, the board found John’s testimony at the hearing inconsistent with what he allegedly told investigators in an interview. As a result, John was expelled.
FIRE takes no position on which party was telling the truth here. But FIRE has significant concerns about several violations of John’s due process rights that affected the ruling against him. In particular, after John sued the school for discriminating against him for being male during the Title IX process, the following facts came to light:
- The school never shared Jane’s original — inconsistent — account with John, the investigators, or the hearing board. Jane originally told the school Deputy Title IX Coordinator that she was “not forced or coerced,” only two weeks after the sexual encounter. Several months later, Jane said she was coerced.
- School investigators refused to interview either of John’s witnesses, leaving him without supporting testimony at the hearing. But school investigators did interview Jane’s witnesses.
- Loyola deleted the audio recording of John’s interview with investigators without explanation. This meant that when the hearing board found his testimony was inconsistent with investigators’ written summary of the interview, John could not cite the original audio to prove that his testimony was consistent.
Viewed in isolation, none of these procedural errors prove that Loyola had a vendetta against John. But viewed together, they suggest a disturbing pattern. This is especially true when you consider John’s evidence that the Title IX coordinator in charge of John’s case was under intense pressure from students and administrators to crack down more harshly on men accused of sexual assault.
When it comes to procedural inconsistencies and failures, courts should consider the cumulative impact of the allegedly unfair decisions, not examine each in isolation.
John and Loyola dispute some of these facts. But rather than let the case go to trial, where a jury could weigh the evidence and decide who is more credible, the district court granted summary judgment in favor of Loyola and refused to consider the evidence of pressure on Loyola and its deputy Title IX coordinator. The court’s reasoning: No one piece of evidence, in isolation, proves that Loyola discriminated against John because he was male. Therefore, John cannot ask a jury to consider whether the pattern of procedural errors, combined with pressure on the school, proves sex discrimination.
But that’s not how the law works, especially in the Seventh Circuit, which is hearing John’s appeal.
The Seventh Circuit is actually a nationwide leader — in a good way — when it comes to Title IX sex discrimination lawsuits like John’s. In its landmark 2019 case, Doe v. Purdue University, written by then-Judge Amy Coney Barrett, the appellate court ruled that courts should consider whether all the alleged facts “taken together” tend to show a plausible case of discrimination against a student based on whether that student is male or female. When it comes to procedural inconsistencies and failures, courts should consider the cumulative impact of the allegedly unfair decisions, not examine each in isolation. In other words, under the Seventh Circuit’s rule, courts should assess the proverbial forest of unfairness, rather than each individual tree.
FIRE urges the Seventh Circuit to reaffirm its common-sense approach in this case, overturn the district court, and allow John Doe the opportunity to prove his case before an impartial jury.
Those facts can include evidence of pressure on the school and a pattern of procedural irregularities against the accused — exactly what John alleged and provided evidence of in this case. Under Purdue, if a plaintiff plausibly alleges those facts, his case can continue. And if the plaintiff demonstrates enough evidence to prove, or at least show a dispute over, those facts, as John did, the case should go to trial. Recognizing the superiority of this approach, several other circuits across the country, including the Second, Sixth, Ninth, and Tenth Circuits, have also adopted it.
At FIRE, we stand behind the holding in Purdue. If university administrators are discriminating against male students on the basis of their sex in Title IX cases, they rarely admit it openly, so suspicious patterns of undue pressure and procedural error are often the only way an accused student can hold his school accountable. As such, the Purdue approach allows unfairly railroaded students the opportunity to let a jury — instead of a tribunal of biased and motivated school administrators — decide their case. FIRE urges the Seventh Circuit to reaffirm its common-sense approach in this case, overturn the district court, and allow John Doe the opportunity to prove his case before an impartial jury for the first time in a years-long saga.
You can read more about the case, and FIRE’s brief, here. Many thanks to FIRE’s former executive director, Robert Shibley at Allen Harris PLLC, for all his contributions to this brief on FIRE’s behalf.