Appeals Court Denies Oberlin College Rehearing, Expelled Male Student Discrimination Case Moves Forward
Full Sixth Circuit refuses rehearing en banc in case where panel found Oberlin College’s “100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves”
John Doe No. 1 is the expelled male student who alleged, among other things, that the Oberlin College sexual assault hearing process was so rigged and biased that 100% of the accused students (all or almost all male) who went to hearing were found responsible.
The District Court threw out the lawsuit, but it was reinstated by a panel in the Sixth Circuit in a 2-1 opinion. We explained the background and appeals court decision in Oberlin College loses appeal in suit by expelled male student, case reinstated:
To refresh your memory, John Doe No. 1’s case involved whether a female student gave “consent” as defined by Oberlin College to what on the surface was a consensual sexual encounter, as I wrote in December 2017, Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate.
John Doe No. 1 had his case dismissed in the federal district court on legal grounds, despite the judge finding there was reason to doubt the result, as I wrote in April 2019, Male student lawsuit against Oberlin College dismissed despite possibly flawed sexual assault disciplinary decision.The appeal was argued in December 2019, Cautious optimism for expelled Oberlin College male student after appellate argument.
The 6th Circuit just issued its Opinion (pdf.), reversing the dismissal and reinstating the case. In so doing, the court excoriated Obelin College’s alleged misconduct (which the court had to accept as true at this procedural stage)….
Here, everyone agrees that Doe pled facts casting doubt on the accuracy of his proceeding’s outcome. The question, then, is whether he pled facts plausibly suggesting that outcome was caused by sex bias.
As an initial matter, Oberlin argues that, to show a “particularized causal connection” between the flawed outcome and sex bias, Doe must identify some bias unique to his own proceeding. But that argument misreads our precedents. We have never held that, to be “particularized” in this sense, the causal bias must be unique to the plaintiff’s own case. To the contrary, for example, we have held that “patterns of decision-making” in the university’s cases can show the requisite connection between outcome and sex. Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018) (emphasis added). Otherwise, a university that categorically discriminates against men or women in sexual-assault proceedings could escape liability in erroneous-outcome cases. What Doe must show here, rather, is simply that he alleged facts supporting an inference of sex bias in his particular proceeding.
For any number of reasons, we hold that he did….
* * *
Doe’s complaint also cites Oberlin’s “Spring 2016 Campus Climate Report,” which stated that—during the very academic year in which Doe’s “responsibility” was determined— “every single case” that went to a hearing panel resulted in a decision that the accused was “responsible” (i.e., guilty) on at least one charge. That statistic likewise supports Doe’s claim. See Miami Univ., 882 F.3d at 593. Oberlin responds that only 10 percent of sexual-assault complaints were resolved through a formal hearing that year. But Doe reads that same Report to mean that, in 80 percent of the cases, the complainant herself chose not to pursue the matter formally. In still other cases, the responding party had graduated or otherwise left the College. And in any event the 100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.
But Doe’s strongest evidence is perhaps the merits of the decision itself in his case.
Oberlin College then filed a Petition for Rehearing En Banc (pdf.) before the entire Sixth Circuit:
This case concerns the issue of whether a Title IX plaintiff can state a claim that a disciplinary proceeding was unlawfully biased based on gender merely by attacking the outcome of that process without alleging facts showing gender bias in his particular proceeding.
The parties do not dispute that Doe satisfied the first of his two-prong pleading requirement, which is to “cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome[.]” Baum, 903 F.3d at 585. And the majority left this prong unchanged. Slip Op. at 9-10. Before the decision in this case, the second prong was satisfied only if a plaintiff alleged facts sufficient to “demonstrate a particularized causal connection between the flawed outcome and gender bias.” Baum, at 585 (internal quotation marks and ellipses omitted). Plaintiffs had to show that bias in their proceeding caused an incorrect result.
The majority reinterpreted “particularized causal connection” to include the most general allegations—public comments made by the College’s former Title IX coordinator not in connection with any specific case, statistical evidence of the outcomes of about ten other sexual misconduct complaints, and an ongoing investigation by the Department of Education’s Office of Civil Rights (“OCR”) of the College’s Title IX processes. Slip Op. at 10 (the bias does not have to “be unique to the plaintiff’s own case”).
John Doe No. 1 opposed rehearing (pdf.):
Oberlin’s petition for rehearing seeks a second bite at the apple under the guise of en banc review. It asserts that the majority “lowered the binding pleading standard” in this Court “in two ways”: (1) by acknowledging that a “‘gravely’ erroneous” outcome can itself supply some evidence of gender bias, and (2) by adopting a causation standard that requires no evidence of bias to be sourced from the temporal confines of a plaintiff’s own proceeding. Petition for Rehearing En Banc (“Pet.”) at 4. But neither of those things lower the Court’s pleading standard; Oberlin just says so to manufacture a reason for en banc review….
Oberlin wants this Court to apply special pleading rules to Title IX cases that apply in no other antidiscrimination context. But “[t]here is no heightened pleading standard for Title IX claims.” Schwake, — F.3d —, 2020 WL 4343730, at *6. Oberlin’s special rules would shield schools from Title IX liability unless they discriminated in the most obvious ways, ways that clever people rarely do. That Oberlin might want such rules is not surprising, but they have no basis in law.
The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court.*
No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied. Judge Gilman would grant rehearing for the reasons stated in his dissent.
*Judge Nalbandian recused himself from participation in this ruling.
This means the case goes forward, and Oberlin College will be subjected to depositions and other discovery, unless the Supreme Court takes the case or the case settles promptly.
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