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June 29, 2020

Strong Title IX Decision Out of the Sixth Circuit in Favor of Male Accused Student

The Sixth Circuit Court of Appeals just issued a strong opinion allowing a male student’s Title IX claims to proceed against Oberlin College.


The Court started out with this important observation:

Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce. . . . .


Here are some key points in the Court’s decision:


- Plaintiff is not required to identify some bias unique to his own proceeding: a university’s “patterns of decision-making” can show the requisite connection between outcome and sex. 


- “Clear procedural irregularities” “permit a plausible inference of sex discrimination,” and in this case “Doe’s strongest evidence is perhaps the merits of the decision itself.”

  • The Court found “remarkable—in a proceeding in which the credibility of accuser and accused were paramount— . . . the failure of the hearing panel even to comment on” a “flat contradiction” in complainant’s statements.
  • The Court also criticized “the Appeals Officer’s failure even to acknowledge the importance of [a later submitted witness statement contradicting some of the female accuser’s testimony] as impeachment evidence regarding Roe’s claims.”
  • “[O]n the merits here the panel’s decision was arguably inexplicable. Per the terms of Oberlin’s Policy, intoxication does not negate consent—only ‘incapacitation’ does. The Policy rather precisely defines that term. And the record here provided no apparent basis for a finding that Roe ‘lack[ed] conscious knowledge of the nature of the act’ of oral sex, or that she was ‘asleep, unconscious, or otherwise unaware that sexual activity [was] occurring[,]’ or that she ‘no longer underst[ood] who [she was] with or what [she was] doing.’ Nor was there any apparent reason for Doe to perceive that Roe was in such a state. To the contrary, Roe was conscious and aware enough to engage in a coherent exchange of texts, to make small talk, and to reason that, ‘[w]e were no longer clothed and I felt that if anything was to continue happening, I wanted a condom.’ Thus, on this record—and making all inferences in Doe’s favor at this stage of the litigation—one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year.”


- The Court also held inferences of gender bias were bolstered by the following allegations about federal pressure:  a federal investigation of Oberlin, the fact that Oberlin changed its policy after a very public complaint by a female student, and that a “100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.”


The decision was 2-1, and the dissenting judge’s criticisms of the majority opinion (including his insistence that procedures unfair to respondents are not evidence of gender bias) only underscore the majority’s rejection of arguments typically made by universities in these cases.



Patricia Hamill and Lorie Dakessian are partners at the Philadelphia law firm Conrad O’Brien, P.C., and lead the firm’s nationwide Title IX, Due Process and Campus Discipline practice. They have represented close to 200 college students and academic professionals in disciplinary proceedings and related litigation involving more than 70 colleges and universities. They are frequent speakers on Title IX issues to audiences including Title IX coordinators, attorneys, and advocacy groups. Patricia and Lorie’s task as attorneys is to advocate for fair, objective, and reliable Title IX proceedings, and they see that as a nonpartisan issue.


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