Up to University Standards? the Eleventh Circuit Creates Novel Standard for Determining Universities' Title Ix Violations in Disciplinary Hearings
| Publication year | 2023 |
Up to University Standards? The Eleventh Circuit Creates Novel Standard for Determining Universities' Title IX Violations in Disciplinary Hearings
Bailey Hankins
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One of the crowning achievements of a young adult's life is graduating college. As enrollment in higher educational institutions has become more accessible, the number of enrolled students has increased. In 2020, 40% of young adults were enrolled in college,1 which amounted to approximately 17,500,000 college students in the United States.2 Accompanied by these massive student populations, universities are put under pressure to ensure the health and safety of those enrolled young adults. one of the major issues placing pressure on universities is sexual assault.3
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Americans, specifically Millennials and Generation Z, seem to be more aware of prevalent social problems. This enhanced social awareness has led universities to crack down on campus sexual assault. Title IX of the Education Amendments of 19724 provide universities with the authority and procedural framework to punish those found guilty of campus sexual assault, while also providing them with an unbiased opportunity to be heard.5 Universities, like their student populations, are prohibited from discriminating based on sex.
The United States Court of Appeals for the Eleventh Circuit, in deciding Doe v. Samford University,6 addressed the question: what is the proper test to apply when a student, accused of sexual assault, claims the university's disciplinary panel used bias based on the student's sex to come to a decision?7 Moving away from prior applied tests, the court, taking the framework from a plurality of the courts that have decided the question, affirmed the lower court's judgment, and adopted a novel test to determine whether a university's disciplinary action was in violation of Title IX.8
On the evening of Halloween 2020, John Doe, a senior at Samford University, attended a party at an off-campus apartment.9 Doe brought with him two pitchers of alcohol he concocted. "The drink was, at most, seven percent . . . alcohol."10
Jane Roe, another student, arrived at the party sometime later.11 After consuming some of the alcoholic beverage brought by Doe, Roe began conversing with him. Doe suggested the two go to a friend's nearby apartment where it was quieter. Roe consented and the two departed. Roe did not appear intoxicated, and no one attempted to stop her from leaving with Doe.12
At the friend's apartment, Roe asked if Doe wanted to "hook up," which Doe agreed to.13 Roe expressed her consent multiple times before and during the sexual intercourse. Basing his assumption on Roe's words and
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actions, Doe believed Roe "understood the who, what, when, where, why, and/or how of the sexual interaction."14 After the sexual intercourse, Roe, of her own power and volition, dressed herself, left the friend's apartment, descended the staircase, and returned to the party.15
When she returned to the party, Roe told one witness that she had been sexually assaulted by Doe.16 Roe's sister arrived at the party and took Roe back to her apartment. Around this time, Doe also returned to the party. One party-goer asked Doe what he had put in Roe's drink.17 Doe responded he had put "everything in her drink," but later stated he had meant he made the drink.18
After Roe returned to her apartment with her sister, she stated Doe had "raped her, gave her hickeys, and bit her lip and breasts."19 Photos were taken of Roe's injuries. The following day, Roe filed a police report against Doe. Additionally, Roe filed a Title IX complaint with Samford University, alleging Doe had "raped her on the night of October 31, 2020, when she was incapacitated."20
Samford University's Title IX policy provides that the Title IX coordinator must provide written notice of allegations of sexual misconduct violations and schedule an initial meeting with the respondent.21 According to Doe, Tim Hebson, Samford's Title IX coordinator, "did not provide [Doe] with written notice of the allegations made against him," nor did Hebson conduct an initial meeting with Doe to notify him of the allegations made by Roe.22
Instead, Hebson assigned the Title IX investigation to Mallory Kruntorad.23 This investigation was Kruntorad's first Title IX investigation. Additionally, Kruntorad had "received little to no training about conducting unbiased and impartial Title IX investigations."24 The investigation started in mid-November, when Kruntorad met with Doe to take his statement. Kruntorad never advised Doe of the specifics surrounding the allegations beyond the claim that he raped Roe.25
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Roe was interviewed several days later.26 She told Kruntorad she was drugged at the party and could not have given consent to Doe. Roe continued, stating she began to feel "fuzzy" after being given a drink from Doe.27 During this meeting, Kruntorad stated, "I still think, regardless, you couldn't give consent."28 Roe was not questioned about possible drinks consumed before the party or if the hickeys had been obtained from any previous sexual interactions. No follow-up interviews occurred.29
After the eleven-day investigation, Kruntorad provided both parties with a preliminary investigation report.30 Doe alleged the report contained multiple witness interviews with "highly prejudicial hearsay."31 One witness expressed doubt that Roe was drugged, recounting that Roe's sister had stated Roe may have received the hickeys from a previous evening, and Roe had told a third party that she consented to the sex with Doe. Conversely, several witnesses attested to Roe's incapacitation. Kruntorad found Roe more credible than Doe based off the witness interviews.32
Per the Title IX policy, Doe and Roe responded to the report.33 Roe restated her allegations, claiming "she never got physically sick from excess alcohol."34 Doe submitted evidence of underlying medical conditions to explain his rigid communication style. A revised report found Doe less credible than Roe based on statements Doe made about immaterial facts.35
Separately, Doe made objections to Hebson concerning the investigation.36 Doe questioned the impartiality of the investigation, requested the names of all witnesses, photographs of Roe's alleged injuries, and Roe's medical records. He also asked Hebson to remove statements from witnesses who would not be testifying from the report. Hebson produced nothing Doe requested. Additionally, Hebson stated that decisions about admissible statements would be made at the hearing.37
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A live hearing took place in early 2021.38 Roe and Roe's sister testified. For the first time, Roe admitted to drinking before the party and that her incapacitation was due to excessive drinking, rather than being drugged by Doe. Roe's sister's testimony included a statement that Roe had passed out and "had no pulse" at the party.39 The hearing panel refused to hear Doe's evidence about his autism. Ultimately, the hearing panel found Doe responsible for engaging in the prohibited behavior and suspended him for five years.40
Doe appealed the decision, arguing "a biased, impartial, . . . and prejudicial investigation process," and "several procedural irregularities."41 The appeal panel dismissed Doe's appeal. The panel conceded there were procedural irregularities. The irregularities were attributed to inexperience and adjustment to new policy.42
Doe sued the university.43 The complaint alleged that Samford University had violated Title IX because "gender bias was . . . a motivating factor in [the university's] erroneous findings against [Doe]" and because Doe was treated less favorably than a female would have been treated.44 In support of his theory, Doe alleged that the Clery reports, which document criminal activity on university campuses, showed that there had been seven reported rapes at Samford.45 Additionally, upon "information and belief," Doe alleged the accused students were all males.46
The university moved to dismiss for failure to state a claim.47 Samford argued the relevant question was "whether the plaintiff has pleaded a plausible set of facts demonstrating that plaintiff's sex was the reason for the university's decision."48 The district court agreed, granting Samford's motion.49 Using the erroneous outcome and selective enforcement tests,
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the court concluded Doe had not supported a reasonable inference that anti-male bias had caused the decision. Doe timely appealed.50
On appeal, the Eleventh Circuit affirmed the lower court's decision to grant Samford's motion to dismiss.51 In doing so, the Eleventh Circuit created a novel framework to be used when determining alleged Title IX violations by university disciplinary action.52
A. Plausibility of Alleged Facts
To establish a claim for relief, a complaint must make a "short and plain statement . . . showing the pleader is entitled to relief."53 The short and plain statement must assert factual allegations that provide the grounds of entitlement to relief.54 Factual allegations must go beyond merely restating elements of a cause of action, and instead must express a right to relief going above pure speculation.55 Even if recovery is unlikely, a well-pleaded complaint showing recovery is at least plausible may proceed.56 Moreover, the lack of a well-pleaded complaint creates the risk of a motion to dismiss for failure to state a claim.57
Two of the most-cited cases from the Supreme Court of the United States, Bell Atlantic Corp. v. Twombly58 and Ashcroft v. Iqbal,59 established the standard that factual allegations must meet to constitute a well-pleaded complaint.60 Twombly held that factual allegations must "state a claim to...
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