Getting over the hump of Twombly/Iqbal pleading standards, that a complaint must present allegations of fact that not only establish the elements of a cause of action, but that they are “plausible” rather than merely conceivable, has long presented a high hurdle in campus Title IX litigation. On the fact side, there is rarely a smoking gun, where a college administrator says “we hate men” or “the man is guilty because he’s male.”
Sure, there are the now-routine allegations of the pressure brought to bear on universities from once-former-and-soon-to-be-again head of the DoE Office of Civil Rights Catherine Lhamon’s bureaucratic jihad to let no grievance go unpunished. There are the campus protests and demands that colleges protect women at all costs. There are the procedures carefully designed to deny due process to the accused while creating the appearance of fairness. And there are the determinations that ignore facts and exculpatory evidence to reach the conclusion that the male is guilty. But courts often found this insufficient to establish sex discrimination against men.
In Does v. University of Minnesota, the Eighth Circuit reversed the district court’s dismissal of the complaint brought by African-American football players accused of sexual assault and harassment for group sex with the accuser. Notably, this group of Does is at extreme risk, as there remains an abiding belief that college athletes are particularly prone to be rapists, and for reasons unsaid in woke society, the accuseds are disproportionately black.
As in University of Arkansas-Fayetteville, we conclude the Does’ lengthy Amended Complaint alleges a number of circumstances which, “taken together, are sufficient to support a plausible claim that the University discriminated against [the Does] on the basis of sex.” 974 F.3d at 865. In reaching this conclusion, we must of course assume all factual allegations are true and draw reasonable inferences in the Does’ favor.
This would, at first blush, seem such an obvious finding as to be unworthy of mention, except that it almost never happens in Title IX cases. Courts “smurf” the allegations, parsing each one individually and finding it, standing alone, inadequate to be plausible rather than seeing each individual instance of pressure as one part of the whole. They are pleaded to be “taken together,” as they are part of the totality of pressure compelling a university to discriminate against male accuseds. They are picked apart by judges determined not to find the pleadings plausible.
We agree with other circuits that the “Dear Colleague” letter, standing alone, “is obviously not enough to get [the Does] over the plausibility line.” Purdue Univ., 928 F.3d at 669; accord Doe v. Univ. of the Scis., 961 F.3d 203, 210 (3d Cir. 2020); Doe v. Univ. of Denver, 952 F.3d 1182, 1192-93 (10th Cir. 2020); see Rossley, 979 F.3d at 1196. But external pressure from public attention and the threatened loss of federal funding “provides a backdrop that, when combined with other circumstantial evidence of bias in [the Does’] specific proceeding, gives rise to a plausible claim” of intentional bias when a female student accused male athletes of sexual misconduct. Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018); see Univ. of Ark-Fayetteville, 974 F.3d at 865.
This is a significant ruling, as the Eighth Circuit viewed the totality of the pressure, some common to all universities and some specific to the university at issue, together with the “circumstantial evidence” of particular bias in the procedures employed in the case at bar, as a whole. Without disturbing the dubious holding that it’s “obvious” the “Dear Colleague” letter alone is insufficient, ignoring the monumental impact it had on campus Title IX tribunals, campus climate and the expectation that no accusation would go unpunished, at least Judge James Loken’s decision recognized that there need not be a smoking gun of flagrant anti-male bias to get the complaint over the Twombly/Iqbal hump.
Problem solved? Not quite yet. An artfully crafted argument remained, that colleges contended that while they may, indeed, be biased, their discrimination was not against males or in favor of females, but for victims and against rapists. It wasn’t the college’s fault that victims tended to be female and rapists tended to be male, and so while they may well be biased, their bias didn’t violate Title IX, which was limited to discrimination on the basis of sex. It was, and remains, a compelling argument and a hurdle too high to surmount for many. The Eighth Circuit, however, refused to take the bait.
Considering as we must the totality of the allegations in the Amended Complaint, we conclude the Does stated plausible claims that the University discriminated against them on the basis of sex during the misconduct investigation and disciplinary proceedings. The district court concluded that a university’s bias in favor of the victims of sexual assault does not establish a reasonable inference of bias against male students, citing Doe v. University of St. Thomas, 240 F. Supp. 3d 984, 991 (D. Minn. 2017). While the circumstances here also give rise to a plausible inference of bias in favor of sexual assault victims rather than against males, “[s]ex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed.” Schwake, 967 F.3d at 948; see Columbia Univ., 831 F.3d at 57. Thus, we reverse the district court’s dismissal of the Does’ Title IX discrimination claims. (Emphasis added.)
This was foreshadowed by District of Colorado Judge William Martinez in Doe v. University of Colorado-Boulder, who saw the problem but refused to face its obvious consequences. As the Eighth Circuit now held, the court need not dismiss the victim-bias claim to acknowledge that it need not be either/or, but that both arguments can be plausible, that colleges can be biased in favor of victims and biased against male students, and that both contentions can provide plausible explanations for the purposes of pleading.
The Does v. University of Minnesota opinion is replete with rhetorical flourishes, no cries of male students being railroaded (in which the male student notably lost), but in its clear holding, faced the hurdles that have long plagued Title IX pleadings and quietly held “enough” with the excuses for denying the wrongfully “convicted” male students their day in court.