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Recently, I wrote an update on two of the most recent decisions in the spate of lawsuits brought by students accused of sexual misconduct who allege they were denied basic fairness in campus proceedings. More than 150 such suits have been filed since 2011, with at least eight filed in the last two months alone.

Today I’m going to highlight two more recent rulings that illustrate how malleable and susceptible to varying interpretations the law in this area is, leading to a mixed bag of results for plaintiffs. Some judges are deeply reluctant to interfere in universities’ internal disciplinary systems and will defer to universities even when the circumstances would likely strike most people as outrageous. Other judges are more willing to allow accused students’ lawsuits to move forward, at least beyond the initial pleadings and into the discovery phase.

Today, we will look at one of each of those cases.

Doe v. College of Wooster

Doe v. College of Wooster is somewhat unusual among these college cases because the plaintiff, a male student proceeding under the pseudonym John Doe, alleges that the sexual encounter over which he was expelled never took place. As a result, Doe filed suit not only against the college for allegedly denying him a fair process, but also against his accuser, Jane Roe (also a pseudonym), for defamation and intentional infliction of emotional distress.

Doe alleged that the process by which the college found him responsible for sexual misconduct was unfair and biased for several reasons:

• He was interviewed by the college’s investigator without knowing the exact nature of the charges against him;
• he was prohibited from presenting relevant evidence and witnesses at the hearing; and
• the administration pressured Jane Roe to pursue a complaint against her wishes in order to “remove the perception out there in the student body” that the college did not take claims of sexual assault seriously enough. In support of this argument, Doe also cited articles pointing to criticisms the college had received over its handling of sexual assault claims.

Earlier this month, a federal court dismissed Doe’s claims against the college, and also denied Doe’s request to amend his complaint to add a claim of sex discrimination under Title IX.

With regard to the sex discrimination claim, the court held that:

the remarks reproduced in [Doe’s complaint] are gender neutral and focus on Wooster’s alleged refusal to confront the problem of campus sexual assault. At most, these articles demonstrate that Wooster has previously been criticized by the press and the student body for being biased against alleged victims of sexual assault. This past criticism may supply a possible motive for favoring assault victims. It does not, however, suggest a basis for discrimination against male students.

The court also dismissed Doe’s claims for breach of contract and other state law violations, considering Doe’s allegations with a great deal of “deference” towards the college’s judicial system and an unwillingness to “second guess” the college.

Although Doe’s claims against the college have now been dismissed, the lawsuit is still ongoing with respect to his claims against his accuser.

The recent decision in Doe v. Amherst College illustrates how, in this flexible area of the law, judges can reach opposite conclusions based on similar fact patterns.

In this case, a male student at Amherst College—also proceeding as John Doe—alleges that he was wrongfully expelled over a sexual encounter during which he was incapacitated by alcohol. He alleges, among other things, that the college wrongfully refused to seek out or even consider exculpatory text messages that his accuser exchanged with other individuals following the sexual encounter in question.

The court denied Amherst’s motion for judgment on the pleadings (similar to a motion to dismiss) on several counts, including on Doe’s Title IX sex discrimination claim. The court allowed that claim to proceed, holding that the facts alleged by Doe were sufficient to support a claim of gender bias:

[A]t the time [Doe’s accuser] filed her complaint she was involved in a student-led movement to compel the College to change the way it handled sexual assault allegations, including by expelling a male student accused of sexual misconduct. He further asserts the College was actively trying to appease the student-led movement and was aware both [Doe’s accuser and one of the witnesses against him] were involved with the student-led movement. These facts supply the necessary nexus between gender bias and the hearing outcome to support Doe’s erroneous outcome claim.

As you can see, the allegations that the court found sufficient here are remarkably similar to the allegations that the court found insufficient in Doe v. College of Wooster. In the Wooster case, the court held that allegations like these might be evidence of a bias against the accused, but not of gender bias. This illustrates perfectly how variable the rulings are in this emerging area of the law.

Notably, the Doe v. Amherst court also allowed several of Doe’s state-law contractual claims against the college to proceed.

There are many more such cases pending, and there are likely to be more rulings in the months to come. Perhaps these additional decisions will bring more clarity. But I suspect that they will just confirm my sense that ultimately, the campus due-process crisis is not going to be resolved by the courts, but rather by increased public pressure and legislative action (such as laws guaranteeing students the right to counsel in such proceedings).

As always, we will keep you posted.