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Friday, May. 11th 2018

Title IX Sexual Misconduct At Private Universities

Title IX of the Education Amendments of 1972 and its implementing regulations have found their way into the lives of university students and administrators at both public and private universities. However, public universities are clearly mandated to provide Constitutional Due Process in the administration and resolution of complaints of gender-based discrimination, which is at the heart of Title IX Sexual Misconduct claims. The “discrimination” most often is in the form of an allegation of unwanted or unwelcome sexual activity or where the sexual activity involved a complainant under the influence of alcohol or drugs and therefore claims consent was not freely given. The 14th Amendment to the U.S. Constitution was enacted in 1868, 104 years before Title IX. But at public universities, the Due Process Clause of the 14thAmendment has been applied to require “fairness” in Title IX Sexual Misconduct proceedings, including providing the accused with written notice of the allegations; and opportunity to respond and the assistance of counsel. Not every public university provides a judicial style hearing.
Private universities routinely provide a form of Due Process Lite because they know that few courts have held them to the traditional Due Process standard. However, three federal courts, one in 2016 and two in 2018, have applied four legal theories to support student plaintiffs who have sued claiming their Title IX prosecution was contrary to law. Those court decisions are:
John Doe v. Brandeis University, 177 F.Supp. 3d 561
John Does v. Rider University, 2018 WL 466225
John Does v. Marymount University, 2018 WL 135158
The theories discussed are: 
  1. Erroneous outcome
  2. Selective enforcement
  3. Deliberate indifference
  4. Archaic assumptions
Plaintiffs who claim an erroneous outcome must allege particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding.
A “selective enforcement” claim asserts that regardless of the student’s guilt or innocence, the severity of the penalty and/or decision to initiate the proceeding was affected by the student’s gender.
The deliberate indifference standard is applied where a plaintiff seeks to hold an institution liable for its failure to prosecute a Title IX Sexual Misconduct claim and was indifferent to the misconduct alleged.
The claim of archaic assumption alleges an obvious gender bias in the attitude or point of view of Title IX Sexual Misconduct investigators, hearing officers or administrators.
For assistance with a private university Title IX matter, contact Mr. Cohen at 785.979.7361 or at cac@studentrightslawyers.com

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