Title IX And The Bad Facts Conundrum

In criminal appeals, one aspect of strategy is to humanize the defendant in order to create as much empathy, if not doubt that the defendant is guilty, as possible when the court considers the legal arguments to overturn a conviction. The reason is simple, that a less hated defendant is more likely to receive sympathetic consideration. It’s human nature.

But the reality is that some defendants are just bad dudes, and committed heinous crimes. There isn’t much good to say about them. Yet, courts will, on occasion, reverse on the law anyway, cutting a bad dude a break. It’s really quite remarkable when this happens, given human nature, and yet it does. That’s the nature of law, in general, and crim law, in particular, that it’s molded around people who aren’t sympathetic and did things that were, well, heinous.

So one might expect it to similarly follow that the accused in Title IX cases would be similarly situated, that even if they can’t mount a stronger argument for innocence than their denial, courts would be capable of looking beyond their putative “guilt” and focus instead on the fact that they were denied due process when they were found responsible. After all, a wrongful conviction is still wrongful, even if the wrongfully convicted can’t proffer a strong claim of innocence.

But as KC Johnson and I have noted with regularity, neither district nor circuit courts have seen Title IX sex tribunal cases this way, seen the wrongfulness of the process as being sufficient reason to give even an accused whose facts are ugly the right to conviction only after a full and fair process. Of course, it’s possible that the inability to proffer a strong argument for innocence is caused by the deprivation of due process, the failure to collect and present exculpatory evidence, the presentment of “facts” so flagrantly biased as to create a near unassailable claim of guilt, or merely that some college kid was incapable of mounting a relevant and cogent argument in his defense. Or, the facts were just bad, but he was still convicted without the chance to defense.

This discussion arose again following a wonderful decision out of the Ninth Circuit against UCLA. After oral argument, KC amassed the facts of the case.

The facts of this case were bad even for the era’s Title IX matters. At UCLA, an international Ph.D. student had a bad breakup with his girlfriend, who was at one point a UCLA student. She went to his office and confronted him; a fight ensued. She claimed a physical assault and he was arrested by UCLA police. The university immediately suspended him. Yet the physical evidence of any assault was non-existent, and ultimately even the UCLA panel found him not guilty of 12 of the 13 charges against him. But it did find the Ph.D. student guilty of a 13th charge—causing the accuser to be fearful. As a result, he was suspended for two years, had to leave the Ph.D. program, and lost his student visa. The student obtained a writ of mandate from a state court in California that ended the suspension after just over a year, and UCLA didn’t re-charge him, but his academic career at UCLA was over.

The kicker in there was that UCLA conceded error in the state court action, but by the time they did so, his student Visa was lost. Even more details were recounted in the circuit opinion, including the accuser lying about still being a student at UCLA and about the accused breaking her rib, both of which were false. Neither of which were sufficient to find the accuser less credible than the accused. This was a case of such egregiously bad facts for the university that it’s almost impossible to read them without concluding that he was the victim here, once by the accuser and again by UCLA.

Yet, the case was dismissed in the district court for failure to adequately plead sex discrimination under Title IX. The Ninth Circuit reversed. Like most Title IX complaints, the sordid history of the Dear Colleague Letter and the DoE Office of Civil Rights pressure on colleges to hold male accuseds responsible no matter what was raised. Most often, courts have refused to give much credence to the impact of this ugly but attenuated influence. Not this time.

The Regents correctly notes that these allegations of external pressures are largely of general applicability to any federally-funded university, with only one relevant
allegation pertaining to UCLA specifically—the 2013 UCLA audit. But this fact does not undermine the allegations’ relevancy in evaluating the plausibility of a Title IX claim.10 Rather, these allegations “provide[] a backdrop that, when combined with other circumstantial evidence of bias in [a] specific proceeding, give[] rise to a plausible
claim.” Purdue Univ., 928 F.3d at 669 (quoting Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018)).

For example, it is reasonable to infer that the DCL, the threat of losing federal funding if sexual misconduct was not vigorously investigated, and the Joint Legislature Audit Committee’s audit regarding the University’s “lack of response to sexual harassment claims” would place “tangible pressure” on the University. When taken alongside Doe’s other allegations discussed below, it is plausible that such pressure would affect how the University treated respondents in disciplinary proceedings on the basis of sex, even in 2017. Schwake, 967 F.3d at 948; Baum, 903 F.3d at 586; Doe v. Columbia Univ., 831 F.3d 46, 57–58 (2d Cir. 2016).

Accordingly, we find that these allegations of external pressures, although alone possibly insufficient to survive a motion to dismiss, give rise to a plausible Title IX claim when evaluated in conjunction with the allegations of an internal pattern and practice of bias and of specific instances of bias in Doe’s disciplinary proceedings.

This may seem obvious as part of the totality of the circumstances demonstrating the  overarching pressures, internal and external, on universities to rig their system to assure the right outcome, but it’s pleaded in case after case and almost universally dismissed. Some judges “smurf” it, holding that it fails, standing alone, to show bias, even though it’s invariably pleaded as part of the overall anti-male climate pushing schools to “convict” together with the particulars applicable to the specific school involved, the particular individuals involved and the specific denial of due process to the accused male student.

Here, the circuit held that while it is not sufficient alone, it doesn’t exist alone but as part of the continuum of allegations that created the general atmosphere of anti-male discrimination together with the specific allegations of the case at hand. Finally, the anti-male climate thrust down the throats of universities by OCR’s overreach and the demands of the school’s unduly passionate students for conviction no matter what are recognized as significant allegations in pleading Title IX sex discrimination. All it took was a case with facts so outrageous that even the circuit was appalled.

3 thoughts on “Title IX And The Bad Facts Conundrum

  1. orthodoc

    I have been reading SJ for a few years now, and I don’t recall a single prior post that garnered only one comment all day (and a link, at that). The post here raises a very interesting question whose answer eludes me. I guess it’s simply that the appetite for granting process rights for all accused in Title IX matters just is not there. Right now, as noted, the courts seem to willing to consider ensuring due process only for the likely-innocent. (By contrast, the famous Ernesto Miranda whose confession was excluded, for example, was indeed was found guilty on re-trial. Clarence Earl Gideon was found not guilty on retrial, but had a handful of prior felony convictions. Neither are whom KC Johnson would call “likely innocent”.)
    (PS I agree that those who seem guilty might only seem guilty because of their lack of a chance to mount a defense, but KCJ seems willing to pass judgment on that front, I guess by [using a summary-judgment style approach] assuming for the moment that everything the accused now offers in his defense is true. The category “likely-innocent” can be defined by the arguments raised in the suits…)

    1. Miles

      Every once in a while, a post just doesn’t get many comments. It feels weird to me too, particularly when the topic is legally very interesting. Why this post, I dunno, but I suspect many people read it, appreciated it and just didn’t have anything to add. It happens.


Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.