Last Friday, Allen Harris attorney Robert Shibley, representing the Foundation for Individual Rights and Expression (FIRE), filed an amicus brief with the United States Court of Appeals for the Seventh Circuit in support of a student accused in a Title IX campus proceeding.
The case, Doe v. Loyola University Chicago, deals with a 2016 Title IX hearing at Loyola in which the university made a number of highly suspicious choices about how to conduct its investigation and hearing—choices that consistently seemed to disadvantage the male accused student. This also “just happened” to come at a time when Loyola generally, and its Title IX administrators specifically, were under a great deal of pressure to come down harder on males accused of sexual assault—the head of the office was even facing public calls for his firing, and the university was facing criticism in national news outlets as well.
Often, students come to Allen Harris in shock, horrified to find out that schools have very little in the way of obligations to give them a fair hearing, regardless of the charge. Appalling abuses are unfortunately common, such as a persistent crediting of one side’s story (but not the other’s), a refusal to contact witnesses, treating the two sides differently in a hearing, hiding of evidence, and more. All of those were a factor in Doe v. Loyola, and we have seen many more besides. It is less well-understood that this kind of behavior by schools can undermine the cases of victims as well, who may “benefit” from procedural shortcuts or insufficiently careless Title IX investigators, only to find themselves dumped into litigation when the accused sues over their mistreatment by the process.
Hiring a lawyer (or contacting an advocacy group like FIRE) can make a huge difference, but remedies in court can be hard to come by, as Doe here found out.
While colleges can be wildly unfair and largely get away with it, federal law does require that they not be unfair in a way that discriminates against someone as a member of a protected class such as race or sex. In this case, Doe had argued that the sum total of his unfair treatment by Loyola, combined with the environment on campus and nationally that disfavored males accused of sexual assault, was enough that a court should allow a jury to decide whether or not he was a victim of sex discrimination.
Unfortunately, the district court disagreed.
Our amicus brief argues that the judge in that court used the wrong legal standard to determine whether Doe’s case could survive Loyola’s motion for summary judgment—a request that the court decides the case in its favor without a trial. The court said that Doe should not get his chance in front of a jury because he had not sufficiently made the case that his unfair treatment was based on bias against males in Title IX proceedings.
This was despite the fact that the court seemed to agree. that Loyola’s Title IX proceeding was full of serious problems. Memorably, the court pointed to just one of Loyola’s decisions along these lines—it withheld crucial evidence that favored Doe’s story—as “difficult to understand,” “hard to understand,” “difficult to explain in a good way,” “lousy,” and “unfair.” Still, looking at all of these decisions individually, the court could not bring itself to say that the overall picture was discriminatory on the basis of sex (and therefore forbidden by Title IX).
The legal problem is that this is not the correct standard to apply. Under a 2019 case called Doe v. Purdue (written by Judge, now Supreme Court Justice, Amy Coney Barrett), courts in the Seventh Circuit must look at all of the incidents taken together, as well as pressures on the institution, to see if a jury could reasonably determine that the school had engaged in sex discrimination. (This is true in many other federal circuits as well.)
In Doe v. Loyola, the judge clearly did not do that. Our amicus brief, then, asks the Seventh Circuit to follow its own precedent and reverse the lower court’s judgment.
It’s rare that schools will flatly admit to engaging in behavior they know is unlawful, like sex discrimination, or even say any individual thing that makes it obvious that that’s what they are doing. They may be bad at holding fair hearings, but they aren’t silly enough to admit to breaking the law.
But that doesn’t mean it’s not happening. Denying students the ability to go before a jury and make that case eliminates one of the only forms of accountability for unfair and discriminatory Title IX hearings that exist. It will only encourage further bad behavior by schools.
Let’s hope, then, that the Seventh Circuit reverses the decision and keeps the door open to plaintiffs like Doe.
Huge thanks go out to FIRE’s Abby Smith and Ryan Ansloan for their help and contributions to the brief (Smith’s blog entry on FIRE’s website has more on the case).