Today, SAVE is releasing our “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation," which reviews and summarizes 206 court decisions that support the 2020 Title IX regulation.
The Analysis highlights 5 appellate and 28 trial court decisions that have articulated deficiencies in the conduct of impartial investigations on campus -- see listing, below. This large number of decisions reflects judicial concern with schools' use of victim-centered, Start By Believing, and trauma-informed investigations.
The 104-page Analysis is an indispensable resource for attorneys, judges, and policy-makers. The entire Analysis is available for purchase.
Sincerely,
Edward Bartlett
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Appellate Court Decisions
Schwake v. Arizona Bd. of Regents, 967 F.3d 940, 951 (9th Cir. 2020) (reversing district court’s dismissal of Title IX action for failure to state a claim): “Schwake's allegations of the University's one-sided investigation support an inference of gender bias. According to Schwake, the University [among other things] . . . failed to consider his version of the alleged assault or to follow up with the witnesses and evidence he offered in his defense . . . [and] promised him that it would only consider ‘one accusation at a time’ but then suspended him based on additional violations of the Student Code to which he was not given an opportunity to respond[.]”
Doe v. Univ. of Scis., 961 F.3d 203, 210 (3d Cir. 2020) (denying defendant’s MTD because Doe plausibly stated Title IX, breach of contract, and procedural due process claims): “As for Roe 2, Doe alleges that USciences ‘[e]ngaged in selective investigation and enforcement of [its] policies by failing to consider [Doe's] alcohol consumption and whether [Roe] 2 should have been charged with violations of [the Policy] if [Doe] was intoxicated when they had sex[.]’ According to the investigator's report, Roe 2 and Doe consumed between three and five drinks each. Doe further alleges that ‘[a]lthough both [he] and [Roe] 2 had been drinking [during the party], [USciences] identified [Doe] as the initiator of sexual activity, notwithstanding the comparable intoxication of both participants.’”
Velez-Santiago v. State University of New York at Stony Brook, 170 A.D.3d 1182, 1183 (2019) (Article 78 proceeding; ruling in favor of the petitioner due to lack of substantial evidence supporting finding of responsibility, annulling Stony Brook’s determination of guilt and expunging the matter from Petitioner's school record): “The record reflects that the complainant did not report to investigators that the petitioner engaged in the act which formed the basis for the hearing panel’s conclusion that the petitioner violated the aforementioned Conduct Code sections and made no allegation at the hearing that such conduct occurred… The hearing panel’s conclusion that the conduct occurred and was nonconsensual was based on no evidence and, thus, comprised of nothing more than ‘surmise, conjecture, [or] speculation.’”
Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018) (reversing the district court’s MTD order of Doe’s claims because Doe plausibly claimed a possible Title IX violation):
"John incorporated an affidavit from an attorney who represents many students in Miami University's disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students." Id. at 593.
"John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student's gender." Id. at 593-94.
“John contends that Miami University was facing pressure to increase the zealousness of its “prosecution” of sexual assault and the harshness of the sanctions it imposed because it was a defendant in a lawsuit brought by a student who alleged that she would not have been assaulted if the University had expelled her attacker for prior offenses.” Id. at 594.
Powell v. Montana State Univ., No. CV 17-15-BU-SEH, 2018 WL 6728061, at *7 (D. Mont. Dec. 21, 2018) (finding that Doe has raised a valid Title IX claim): “Issues of material fact continue to be present regarding Shaffer's conduct in the selection of Sletten as investigator and in the conduct of the investigation by Sletten without prejudgment of the issue of Powell's guilt. Correspondence and exchanges between Sletten, Shaffer, Perry, and Assistant Dean of Students Grusonik, viewed in the light most favorable to the Plaintiff, establish that questions of material fact remain as to whether Sletten's investigation was impartial and whether Shaffer unfairly prejudged OIE's investigation against Powell. Moreover, MSU's imposition of sanctions against Powell before any decision on the merits of Perry's complaint had been reached clearly calls into question whether MSU itself inappropriately prejudged the case.”
Trial Court Decisions
Doe v. Washington & Lee Univ., No. 6:19-CV-00023, 2021 WL 1520001, at *16 (W.D. Va. Apr. 17, 2021) (denying the University’s motion for summary judgment because Doe adequately claimed a Title IX violation): “Doe argues that [psychologist] Dr. Boller’s presentation to [adjudication committee] HSMB members ‘explain[ed] that different rules apply to victims, for whom memory gaps as well as inconsistent and evolving testimony demonstrate veracity.’…Doe argues that this was ‘biased training,’ which rested upon ‘questionable ‘trauma-informed’ theories.’”
Alexander M. v. Cleary (SUNY-Albany), 188 A.D.3d 1471, 1476 (N.Y. App. Div. Nov. 25, 2020) (reversing the denial of a motion for discovery under fairness and procedural due process grounds): “An impartial investigation performed by bias-free investigators is the substantive foundation” of a legal proceeding.
Doe v. American University, No. 19-CV-03097 (APM), 2020 WL 5593909, at *14 (D.D.C. Sep. 18, 2020) (denying the university’s MTD under Title IX and breach of contract grounds): “As evidence of a deficient investigation, Plaintiff points to three examples of things that were not ‘thorough and impartial’ about Quasem's investigation: (1) she ‘failed to ask Ms. Roe and H.S. simple and obvious follow-up questions when the answers would have undermined Ms. Roe's allegations’; (2) she ‘failed to interview at least three people to whom Ms. Roe gave contemporaneous accounts of the events of that night’; and (3) she ‘withheld information and evidence gathered in the investigation of H.S. regarding the same set of events.’ Pl.’s Opp'n at 33–34; see also Compl. ¶ 272.”
Doe v. Syracuse University, 440 F. Supp. 3d 158, 179 (N.D.N.Y. Feb. 21, 2020) (denying the University’s motion for summary judgment because Doe’s allegations plausibly state a Title IX selective enforcement claim): “The university trained its investigators that inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma….Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful.”
Doe v. Colgate Univ., 457 F. Supp. 3d 164 (N.D.N.Y. 2020), reconsideration denied, No. 517CV1298FJSATB, 2020 WL 3432827 (denying University’s motion for summary judgement as to Doe’s Title IX claims):
“Plaintiff contends that [Title IX Investigator] was not an impartial factfinder because her investigation was entangled with [NY State Police Officer’s] criminal investigation and because she did not thoroughly investigate inconsistencies in Roe's accounts. The evidence supports Plaintiff's contentions.” Id. at 171-72.
“[A]fter Roe reported the incident to [Title IX Investigator] and stated that she wanted to file a criminal complaint, [Title IX Investigator] called [NY State Police Officer’s] on his cell phone and put him in touch with Roe. Next, [NY State Police Officer’s] asked [Title IX Investigator] to make a room on Defendant's campus available to him to interview witnesses, including Plaintiff; and he ultimately used that room to make the controlled phone call between Roe and Plaintiff and to ‘interrogate’ Plaintiff.” Id. at 172.
“Additionally, the evidence shows that [Title IX Investigator] failed to probe Roe regarding various internal inconsistencies raised in her accounts of what happened and countered by available, objective evidence. For example, Roe claimed that she accompanied Plaintiff back to his room around 12:30 or 1:00 a.m.; however, Plaintiff did not swipe his gate card to his residence hall until 2:03 a.m. Similarly, Roe maintained that she left Plaintiff's room at 4:30 a.m., but Defendant's records indicate that she did not return to her residence hall until 6:12 a.m.” Id.
“Furthermore, [Title IX Investigator] did not ask Roe to respond to Plaintiff's version of the events, even though Plaintiff responded to Roe's version of the events in order to defend himself from her allegations. For instance, Plaintiff claimed that they changed positions during the third act of intercourse, thus putting Roe on top and giving her ‘ample opportunity to stop at any point[.]’ Roe complained that she ‘tried to push [Plaintiff] off of her and to squirm away, but she couldn't because [he] had his hands on her hips and kept holding her hips down’ and that she ‘thought to herself that she should “suck it up”’ so that she could leave. Yet, despite these blatant inconsistencies, there is no indication that Brogan tried to reconcile Roe's and Plaintiff's versions of the incident.” Id.
Doe v. Purdue Univ., 464 F. Supp. 3d 989, 995 (N.D. Ind. 2020) (finding that Purdue discriminated against Doe on the basis of sex): “During the interview, Defendants Wright and Rooze were uninterested in any exculpatory evidence. Rather, Defendants Wright and Rooze were interested in supporting Jane Roe's allegations. Defendants Wright and Rooze rejected the Plaintiff's request to observe security camera film which would have undermined the credibility of Jane Roe and other witnesses. Defendants Wright and Rooze also refused to provide the Plaintiff with exculpatory evidence such as the audio recordings of the interviews with Jane Roe and other witnesses. Some point thereafter, Defendants Wright and Rooze issued a ‘Preliminary Report.’ Purdue University denied the Plaintiff's repeated requests for a copy of the Preliminary Report. Purdue University also denied the Plaintiff's requests for copies of the audio recordings, documents, and other information gathered during the investigation. Instead, Purdue University only allowed the Plaintiff to review a copy of the Preliminary Report from a secure location. The Plaintiff took handwritten notes regarding the information in the Preliminary Report. Thereafter, Defendants Wright and Rooze submitted the Preliminary Report to administrators at Purdue University. However, these Defendants refused to include exculpatory evidence within the Preliminary Report.”
Doe v. Elson S Floyd College of Medicine at Washington State University, No. 2:20-CV-00145-SMJ, 2020 WL 4043975, at *6 (E.D. Wash. July 17, 2020) (granting Doe a preliminary injunction for violations of due process and disability rights): “However, at this stage, it appears to be a question of fact whether [the investigators’] relationships with the students involved in the events [the adjudicative board] SEPAC was meeting to review amounted to a personal interest ‘that might impair, or reasonably appear to an objective, outside observer to impair, a person's independent unbiased judgment in the discharge of their official responsibilities.’ Wash. Admin. Code § 504-26-125(4). Thus, Plaintiff has shown serious questions going to the merits of whether these SEPAC members' failure to recuse themselves violated her due process rights.”
Bisimwa v. St. John Fisher College, et al., E2019005959, at *6-7, (N.Y. Sup. Ct. Nov. 20, 2019) (denying the school’s MTD Bisimwa’s breach of contract and defamation claims): “[Dean of Students and Residential Life and Investigator] Travaglini's response [to the adjudicative committee] was not complete and gave only a partial picture of the entire disciplinary history as the cited new criminal trial evidence and favorable expungement were not mentioned.”
Harnois v. Univ. of Massachusetts at Dartmouth, No. CV 19-10705-RGS, 2019 WL 5551743 (D. Mass. Oct. 28, 2019) (denying UMass’s 12(b)(6) motion on nine counts):
“During its investigation, UMass Dartmouth’s Title IX office asked two female students in Harnois’s graduate program to file complaints against Harnois but both refused to do so. Eventually, the Title IX investigator contacted every female student in Harnois’s classes in search of derogatory information.” Id. at *3.
“Harnois alleges that during his Title IX investigation, Gomes did not interview any of Harnois’ witnesses, and failed to consider potentially exculpatory evidence - such as, for instance, Harnois’ discovery and reporting of a cheating scandal, which might have given several individuals a motive to disparage him.” Id. at *6.
Doe v. Westmont College, 34 Cal. App. 5th 622, 625 (Apr. 23, 2019) (affirming the trial court’s writ of mandate setting aside Westmont’s determination and sanctions against Doe because of fairness issues): “Westmont’s investigation and adjudication of Jane’s accusation was fatally flawed.”
Doe v. University of Mississippi, 361 F.Supp.3d 597 (2019) (holding that Doe successfully pleaded plausible claims of sex bias and procedural due process):
“Defendant Ussery’s written report did not address or summarize the statements made by Bethany Roe to her physician or the police despite these statements containing highly exculpatory information. The report did not evidence any attempt by Ussery to interview the responding officers, persons who attended the pre-game party with Roe and Doe, or persons who the couple spent time with at the party. Furthermore, the cab driver who took Roe and Doe to the fraternity party and back to Doe’s apartment was not interviewed and there was no assessment of any text messages or phone calls between Roe, Doe, the cab driver, or Roe’s roommates.” Id. at 607.
“The report did not address nor contain Roe’s medical record which clearly indicated that Roe did not believe she was raped.” Id.
“But the presence of an allegedly biased panel member raises a due-process problem. A biased decision maker is constitutionally unacceptable.” Id. at 611.
Doe v. The University of Mississippi, No. 3:16-CV-63-DPJ-FKB, 2018 WL 3560229, at *11 (S.D. Miss. July 24, 2018) (denying MTD for Plaintiff’s Title IX claim) “Turning then to Doe’s arguments regarding Ussery, he says her investigation was biased and flawed, that it resulted in an unfair report that was presented to the Judicial Council as the official report of the Title IX Coordinator, and that the panel itself had been trained in a way that prejudiced Doe’s ability to be heard. As to that training, Doe makes the following points: (1) the training material “advises that a ‘lack of protest or resistance does not constitute consent, nor does silence,’” (2) it “advise[s] the panel members that ‘victims’ sometimes withhold facts and lie about details, question if they’ve truly been victimized, and ‘lie about anything that casts doubt on their account of the event,’” and (3) it explains that “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.””
Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592, 2018 WL 466225, at *38 (finding that Doe had plead a plausible claim under breach of contract): “In addition, Plaintiff alleges Defendant breached a provision of the Policy stating, ‘The Board will be composed of three (3) impartial and trained, professional staff members of the University community appointed by the Title IX Coordinator (or designee).’ Specifically, he alleges: ‘Just days before the December 4 formal hearing, [he] learned that the three designated Board members all reported, either directly or through others, to Dean Campbell. This was a clear conflict of interest. It was Dean Campbell who had urged Jane Roe and Jane Roe 2 to make a report to the [Police Department]. It was Dean Campbell who had suspended [Plaintiff] on October 19, 2015. It was Dean Campbell who had summarily declared that he was ‘going against’ [Plaintiff]. And, on information and belief, it was Dean Campbell who had directed the community standards panel to continue [Plaintiff's] interim suspension.’ Despite this clear conflict of interest, [Defendant] failed to recuse any of the Board members.
Matter of Doe v. Cornell University, EF2016-0192. 2017 NY Slip Op 30142(U) at *3 (N.Y. Sup. Ct. Jan. 20, 2017) (denying Cornell’s MTD due to Doe’s plausible Title IX claim): “The Court concludes that Respondents' determination to defer investigation of the Petitioner's Policy 6.4 is arbitrary and capricious and without a rational basis. Once Respondents promulgated policies and procedures for the adjudication of complaints of misconduct, they are not permitted to ignore them for administrative, procedural or any other reason. The Court concludes that Respondents improperly deferred investigation into Petitioner's claim of sex discrimination in contravention of their established policies and procedures.”
In the Matter of John Doe v. Rensselaer Polytechnic Institute, No. 254952, at *12 (N.Y. Sup. Ct. Nov. 6, 2017) (granting New York state law Article 78 order annulling Respondent's initial determination that Petitioner violated RPI’s Student Sexual Misconduct Policy): “Before the meeting began, the interviewers informed Petitioner that he was the subject of a sexual misconduct complaint, and gave Petitioner a number of important documents relating to the investigation and his rights, and only gave him moments to consider them. The Court finds that the conduct demonstrated by Respondents towards Petitioner during the initial course of this investigation was a clear violation of his constitutional rights.”
Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017) (denying defendant’s MTD regarding plaintiff’s Title IX erroneous outcome claim): “Here, Plaintiff has adequately alleged facts that plausibly support at least a minimal inference of gender bias on the part of HWS. The allegations which support that inference include the following . . . failed to . . . conduct any follow-up interviews to resolve inconsistencies between witnesses' statements.”
Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 816–17 (E.D. Pa. Sep. 13, 2017) (holding that Defendant violated Title IX under an erroneous outcome theory): “Specifically, the Complaint alleges that officials who handled Plaintiff's case were trained with, among other materials, a document called ‘Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators.’ That document warns against victim blaming; advises of the potential for profound, long-lasting, psychological injury to victims; explains that major trauma to victims may result in fragmented recall, which may result in victims ‘recount[ing] a sexual assault somewhat differently from one retelling to the next’; warns that a victim's ‘flat affect [at a hearing] does not, by itself, show that no assault occurred’; and cites studies suggesting that false accusations of rape are not common. At the same time, the document advises that the alleged perpetrator may have many ‘apparent positive attributes such as talent, charm, and maturity’ but that these attributes ‘are generally irrelevant to whether the respondent engaged in non consensual sexual activity.’ It also warns that a ‘typical rapist operates within ordinary social conventions to identify and groom victims’ and states that ‘strategically isolating potential victims can show the premeditation’ commonly exhibited by serial offenders. The Complaint asserts that such guidance ‘encourage[s] investigators and adjudicators to believe the accuser, disregard weaknesses and contradictions in the accuser's story, and presume the accused's guilt.’”
Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817 (E.D. Pa. Sep. 13, 2017) (denying the University’s MTD under procedural due process grounds): The university’s training document “warns against victim blaming; advises of the potential for profound, long-lasting, psychological injury to victims; explains that major trauma to victims may result in fragmented recall, which may result in victims ‘recount[ing] a sexual assault somewhat differently from one retelling to the next’; warns that a victim’s ‘flat affect [at a hearing] does not, by itself, show that no assault occurred’; and cites studies suggesting that false accusations of rape are not common….In light of these same allegations, we also conclude that the Complaint plausibly alleges that the investigators were not ‘appropriately trained as investigators in handling sexual violence cases.’”
Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017) (denying MTD on procedural due process grounds): “The Court agrees with Plaintiff that one may plausibly infer that the Decision was erroneous ‘given the pleaded facts’ that: [] two ‘esteemed Rollins' Wellness Center members expressed serious concerns about the integrity of the Investigator and the investigation.
Tsuruta v. Augustana University, No. CIV. 4:16-4107-KES, 2017 WL 11318533, at *3 (D.S.D. June 16, 2017) (denying defendant’s MTD regarding plaintiff’s breach of contract claim and negligence claim): “[T]he complaint states the investigator failed to interview relevant witnesses and detect exculpatory emails deleted before the complainant gave the emails to the investigator.”
Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016), adhered to on denial of reconsideration, D.N.J. No. CV 16-471 (KM) (JBC), 2017 WL 1508177 (D.N.J. Apr. 25, 2017), and aff'd in part, remanded in part, 699 Fed. Appx. 129 (3d Cir. 2017) (denying MTD on Count 1 for failure to state a Title IX claim): “The Complaint [alleges] that ‘[a]s a purported female victim, the Accuser's allegations against the male plaintiffs were accepted as true without any investigation being performed and without the development of any facts or exculpatory evidence.’ And the Complaint does allege that Collick and Williams were not given the opportunity to respond or explain themselves, did not receive proper notice of the specific charges, were not permitted to confront or cross-examine their accuser, were not given a list of witnesses against them, and more generally were not afforded a thorough and impartial investigation.”
Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016) (granting a preliminary injunction against defendant for breach of contract): “[Investigator] Perkins’ assessment that there was insufficient evidence to support [accused student] Doe’s fabrication claim was particularly problematic given that she had refused to ask for evidence that might have proven it so and been exculpatory to Doe. …The problem here was that Perkins made the initial decision to include the conspiracy claim and corresponding character evidence, but then chose not to complete the evidence-gathering, and went on to say that there was insufficient evidence to support Doe’s fabrication claim. Because of this, her failure to request the text messages between Ann and Witness 9 was a violation of Doe’s right ‘[t]o be given every opportunity to . . . offer evidence before the hearing body or officer.’”
Ritter v. Oklahoma City Univ., W.D. Okla. No. CIV-16-0438-HE, 2016 WL 3982554, at *2 (W.D. Okla. July 22, 2016) (denying MTD for failure to state a Title IX claim): “[C]onsidering all the allegations in the amended complaint, including the asserted facts underlying plaintiff's alleged offense, the alleged manner in which the investigation and disciplinary process were conducted, the allegation that females facing comparable disciplinary charges have been treated more favorably than plaintiff and the assertion that, because of his gender, the sanctions imposed on plaintiff were disproportionate to the severity of the charges levied against him, the court concludes plaintiff has stated a selective enforcement claim.”
Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016) (granting Doe a TRO for fairness issues): “the investigative report dismissed any inconsistencies as attributable to the complainant’s anxiety.”
Doe v. Ohio State University, No. 2:15-CV-2830, 2016 WL 1578750, at *3 (S.D. Ohio Apr. 20, 2016) (granting a preliminary injunction against the University for fairness and procedural due process issues): “Plaintiff has introduced evidence that has given this Court significant pause as to many of the practices that the university employs and the rules it has established to govern its investigative and disciplinary hearing process.”
Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602, 619 (E.D. Va. Feb. 25, 2016) (granting summary judgment for Doe on Title IX grounds) “The undisputed record facts reflect that, as of the time plaintiff was allowed to present his defense before [university investigator] Ericson, Ericson admits that he had ‘prejudged the case and decided to find [plaintiff] responsible’ for sexual assault.”
Doe v. Georgia Board of Regents, No. 1:15-cv-04079-SCJ, at *37-38 (N.D. Ga. Dec. 16, 2015) (violating Doe’s procedural due process rights because of an impartial investigation): “To put it bluntly, [investigator] Paquette’s testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional.”
Doe v. Washington and Lee University, No. 6:14-CV-00052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015) (denying the University’s MTD because Doe’s allegations plausibly support a Title IX claim)
“In the course of the investigation, Ms. Kozak and Mr. Rodocker ultimately interviewed at least nine people. These witnesses included two of Plaintiff’s four recommended witnesses and at least eight witnesses recommended by Jane Doe…When Plaintiff questioned why two of his suggested witnesses were not interviewed, Ms. Kozak stated that the interviews would not be necessary, as they already had enough facts.” Id. at *4.
“During discovery, W&L produced a summary of ten years’ worth of HSMB panel findings, between the 2008-09 and 2018-19 academic years. Out of 35 total allegations, 27 included male respondents. Of those 27, 14 claims proceeded to a hearing. Of those 14 cases that went to a hearing against male respondents, 9 male respondents were found responsible and 5 were found not responsible. One case had a male complainant and male respondent; four cases had both female complainants and respondents.” Id. at *11.