������ýapp�ٷ�

As Torch readers undoubtedly know, college students accused of sexual misconduct are routinely denied due process in campus judicial proceedings. In recent years, an increasing number of those students have been taking their universities to court, arguing that unfair campus proceedings violated their constitutional due process rights, breached contracts, and even discriminated against them on the basis of sex.

More than 50 such lawsuits have been filed since the Office for Civil Rights issued its groundbreaking “Dear Colleague” letter in April 2011, and at least 25 of them are still awaiting even a preliminary ruling. Over the past two weeks, however, two new rulings have come down, both of which were favorable to the accused-student plaintiff.

Doe v. Washington and Lee University

The first of the two rulings was issued by the U.S. District Court for the Western District of Virginia in Doe v. Washington and Lee University, 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015). The judge in that case denied the university’s motion to dismiss Doe’s Title IX claim, which alleged that the university—through its disciplinary proceedings—had unlawfully discriminated against him on the basis of sex.

This ruling is significant because many accused-student plaintiffs have attempted such Title IX claims, and have . In the past eight months alone, judges have dismissed six accused-student plaintiffs’ Title IX claims, holding in each case that the student had not shown evidence pointing to gender discrimination as the motive for the university’s wrongful actions.

The bar for these claims is high for two reasons. First, a Title IX claim requires a showing of intentional discrimination, rather than just a showing that a university policy or procedure has a disparate impact on members of a particular sex. Second, courts have held that it is insufficient for a plaintiff to show that a university’s procedures are biased against the accused; rather, a plaintiff must present evidence that the bias is actually gender-motivated. This is because, as one judge recently explained, evidence of a bias against the accused could easily be “prompted by lawful, independent goals, such as a desire (enhanced, perhaps, by the fear of negative publicity or Title IX liability to the victims of sexual assault) to take allegations of rape on campus seriously and to treat complainants with a high degree of sensitivity.” Doe v. Columbia University, 2015 U.S. Dist. LEXIS 52370, *34 (S.D.N.Y. Apr. 21, 2015) (dismissing plaintiff’s Title IX claim).

In the Washington and Lee case, the plaintiff presented evidence that the university’s Title IX officer—who served as the investigator in the plaintiff’s case—had put on a presentation during which she favorably discussed an article entitled “Is it Possible That There Is Something In Between Consensual Sex And Rape … And That It Happens To Almost Every Girl Out There?” After considering this evidence, the court held that:

[g]ender bias could be inferred from Ms. Kozak’s alleged October 5, 2014 presentation, wherein she introduced and endorsed the article, Is It Possible That There Is Something In Between Consensual Sex And Rape . . . And That It Happens To Almost Every Girl Out There? That article, written for the female-focused website Total Sorority Move, details a consensual sexual encounter between a man and the female author of the article, who comes to regret the incident when she awakens the next morning. As Plaintiff describes it, the article posits that sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express. This presentation is particularly significant because of the parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct.

Accordingly, the judge allowed the plaintiff’s Title IX claim to proceed to the next stage of litigation.

Mock v. University of Tennessee at Chattanooga

Five days later, the University of Tennessee at Chattanooga’s (UTC’s) decision to expel a student for sexual misconduct, ruling that the university’s decision was arbitrary and capricious. Mock v. University of Tennessee at Chattanooga, No. 14-1687-II (Tenn. Ch. Ct. Aug. 10, 2015).

Notably, the court’s decision turned heavily on UTC’s use of an affirmative consent standard. Affirmative consent standards—which define consent not as the absence of a “no” but rather as the presence of a “yes” or other clear verbal or non-verbal assent—are increasingly popular on college campuses. California and New York have even passed laws requiring state colleges and universities to adopt an affirmative consent standard, with other states considering similar legislation. FIREand other critics of affirmative consent standards have long argued that they undermine the presumption of innocence by shifting the burden of proof to the accused student to prove that he or she obtained consent. As FIREExecutive Director Robert Shibley :

[Affirmative consent] effectively shifts the burden of proof to the accused, making him or her guilty until proven innocent. The question is no longer whether or not someone actually consented to a sexual act, it’s whether the accused can prove that they received such consent — and short of a videotape of the entire encounter, that proof is unlikely to exist.

The judge in the Mock case agreed, finding that as implemented by the university, UTC’s affirmative consent policy was “flawed and untenable”:

[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.

Affirmative consent standards are relatively new, so this is the first ruling FIREis aware of addressing the issue. A recently filed federal complaint against Clark University in Massachusetts also challenges the burden-shifting nature of the affirmative consent standard, so there will likely be more to come on that front.

FIRE will continue to bring you updates on this rapidly emerging area of the law, so stay tuned!