Why, one might reasonably wonder, would Grinnell College, the party school of Iowa, pick someone to be the Title IX sex adjudicator who they knew was flagrantly biased against male students? On the one hand, that’s apparently exactly what they wanted from their adjudicator, a person who would adeptly make sure that the guy would come out guilty. On the other hand, it was almost as if the college was handed someone so impervious to criticism that she was above reproach.

So Grinnell College made a big bet by retaining Marsha Ternus, former chief judge of the Iowa Supreme Court, to serve as their Title IX adjudicator. After all, who could question the bona fides, integrity or neutrality of the former chief judge?

Ternus found Moe violated the Policy. With regard to Complainant 1, Ternus found Moe was not responsible for nonconsensual sexual intercourse. Id. Instead, Ternus found Moe responsible for nonconsensual sexual contact, a claim not alleged by Complainant 1 or charged against Moe. With regard to Complainant 2, Ternus found Moe responsible for nonconsensual sexual intercourse. With regard to Complainant 3, Ternus found Moe responsible for nonconsensual sexual contact. Ternus predicated her findings that Moe violated the Policy on a pattern of behavior. Ternus found Moe exhibited a pattern as to Complainants whereby Moe engaged “in rather harmless or innocuous physical contact with a woman (sometimes gaining [her] trust and sympathy by sharing accounts of [Moe’s] personal troubles) then escalating that contact into sexual activity.”

On the one hand, pretty sneaky. On the other hand, Moe was expelled, so Ternus managed to both game the charges and produce the result desired by Grinnell. And it might have worked, but for Nesenoff & Miltenberg’s Kara Gorycki taking a scalpel to the game, dissecting the sham “findings.”

Rather than concede its violation of Title IX, Grinnell did a Hail Mary, moving for judgment on the pleadings by claiming that the plaintiff’s theory of liability for the college was based on the “cat’s paw theory.”

Grinnell College argues it cannot be held liable under Title IX for bias in Ternus’s adjudication process because Ternus did not have “authority to address the alleged discrimination and to institute corrective measures on [Grinnell College’s] behalf.” Id. at 9–10 (quoting Roe v. St. Louis Univ., 746 F.3d 874, 882 (8th Cir. 2014) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998))). Grinnell College argues the cat’s paw theory of liability is incompatible with Title IX, and Count I fails to state a plausible claim. Id. at 12. Grinnell College makes no other argument that it is entitled to judgment on the pleadings on Count I.

The what theory?

“The cat’s paw analysis applies in situations where a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Cherry v. Siemens Healthcare Diagnostics, Inc.,
829 F.3d 974, 977 (8th Cir. 2016).

In other words, so what if Ternus was biased against male students. Who knew? She duped us, the ultimate decision makers, into believing she was neutral and fair in her deliberate scheme to discriminate. Not that Ternus didn’t deserve to be there, but Grinnell sought to avoid its own decision to bring in this former chief justice to do its dirty work by throwing her under the bus. It didn’t work.

Because the cat’s paw theory is inapplicable to Count I of Moe’s complaint, the Court need not consider whether the Eighth Circuit would apply the cat’s paw theory of liability to Title IX cases. Moe does not rely on the cat’s paw theory of liability in Count I. Unlike the plaintiff in Bose, Moe does not sue Ternus in her individual capacity. Cf. 947 F.3d at 987, 989. Moe’s complaint does not allege Ternus was “a biased subordinate, who lack[ed] decisionmaking power,” or that she used Grinnell College as a dupe to trigger a discriminatory scheme. Cherry, 829 F.3d at 977. Moe alleges, and the record supports, Ternus was an official decision maker on behalf of Grinnell College. Cf. Gebser, 524 U.S. at 290–91. She could address an issue of discrimination in Grinnell College’s adjudication process because she was Grinnell College’s adjudicator.

Rarely does the meme, “play stupid games, win stupid prizes,” fit better. By retaining a former chief justice in the expectation that she could do the dirty work desired of her while remaining above the fray by dint of her former judicial office, Grinnell thought it beat the system. After Kara Gorycki was done dicing and slicing, the system said “nope.”