Judge Grants TRO for Respondent in Title IX Due Process Claim Against Private College (John Doe v. Rhodes College)
A federal district judge in the Western District of Tennessee has ruled that a Respondent may enjoin a private institution from enforcing a sexual misconduct determination based on the likely success of his erroneous outcome claim under Title IX. While Title IX applies to both public and private institutions that receive federal funds, the case is significant in that the judge’s ruling introduces an unprecedented analysis of a purported violation of due process—a constitutional doctrine that is typically inapplicable to private institutions.
John Doe, a football player and fraternity member, alleged violations of Title IX under the theory of erroneous outcome and selective enforcement when Rhodes College found him in violation of the college’s sexual misconduct policy. Specifically, Doe alleged that the college reached a flawed outcome by impermissibly denying him an opportunity to cross-examine his accuser during the disciplinary proceeding and introducing evidence of the complainant’s medical examination without permitting him an opportunity to prepare a proper defense. Doe also took issue with the college’s reliance on certain witness statements while appearing to decline enforcement against a female student implicated by the Complainant. In attempting to establish gender bias, Doe alleged that the college faced pressure from on-campus protests of sexual assault directed at fraternity organizations, college football players, and college administrators. Doe sought to enjoin the college from enforcing his expulsion and denying him conferral of his degree.
The court found it likely that Doe’s erroneous outcome claim would succeed on the merits and, on balance, the risk of irreparable harm to Doe’s professional and academic reputation and the public interest in ensuring colleges comply with “procedural due process and Title IX” weighed in favor of granting Doe the preliminary injunction.
In finding that Doe is likely to succeed on his erroneous outcome claim, the court cited to Doe v. Baum, a recent decision from the 6th Circuit involving the University of Michigan—a public university—which held that where a university’s determination turns on the credibility of an involved party or witness, due process requires the right to cross-examination. Here, the court reasoned that the absence of Doe’s accuser from the disciplinary proceeding appeared “to be a significant denial of due process.” In a nearby footnote, the judge states that while recent court decisions have found that the right to cross-examination does not apply in breach of contract claims against a private university, the present case was distinguishable because Doe’s claim invokes “due process concerns under Title IX.”
This case marks a significant departure from the state action requirement long established under constitutional law. Generally, at public institutions, Respondents often couple erroneous outcome claims with due process claims because public institutions are extensions of the state and the analysis of both claims are similar—hinging on whether the Respondent was afforded the process owed under the constitution and whether any deprivation of process materially affected the outcome of the proceedings. Alternatively, at private institutions, Respondents typically couple erroneous outcome claims with breach of contract claims to assess whether the institution adhered to policies and procedures entered into by both private parties. The court ruling at hand instead suggests that the state action requirement is no longer relevant in Title IX claims.
Colleges and universities, as well as their Title IX Coordinators, will want to closely monitor this case for any subsequent appeals that affirm or deny the reasoning of the decision.
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Should you have any questions or concerns about the possible implications of this ruling, please feel free to contact HMBR’s Higher Education Group at 312-946-1800.