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Last Friday, a New York federal district court delivered a harsh rebuke to Rensselaer Polytechnic Institute in a Title IX lawsuit brought by a student accused of sexual misconduct. RPI has long been on ������ýapp�ٷ�’s radar as one of the worst colleges in the country for free speech (in 2020, FIRE“awarded” RPI our second annual Lifetime Censorship Award), and it turns out RPI does not have much regard for due process, either. 

The court’s decision is particularly significant because it is one of the first to address the way schools incorporate the Department of Education’s into their disciplinary processes. 

In August 2020, RPI adopted a new policy to comply with the regulations, which require schools — among other things — to adjudicate claims of sexual misconduct at a live hearing where the parties’ advisors have the opportunity to conduct cross-examination. But RPI refused to use its new policy to adjudicate the plaintiff’s case because the alleged misconduct took place before August 2020. RPI argued that because the Department of Education stated in a that the new regulations were not retroactive, it did not need to provide the plaintiff (known in court papers by the pseudonym John Doe) with the enhanced procedural protections of its new policy. 

Doe filed suit, arguing that RPI’s insistence on applying an old policy that provided fewer procedural protections was discriminatory. The court agreed and issued an injunction barring RPI from deciding Doe’s case until his discrimination suit is resolved. To get an injunction, a plaintiff must first be able show that they are likely to succeed on the merits of their claim. 

According to the court:

For a Title IX sex discrimination claim, the Second Circuit has ruled that a university runs afoul of the statute when it: “(1) takes an adverse action against a student or employee[;] (2) in response to allegations of sexual misconduct[;] (3) following a clearly irregular investigative or adjudicative process[; and] (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex[.]”

On the first prong, the court held that RPI’s “conscious and voluntary choice to afford the plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.” The court found the question of whether the regulations apply retroactively to be “largely irrelevant” to the appropriateness of RPI’s conduct and instead focused on RPI’s motives:

[W]hether the Department of Education would have penalized RPI for not complying with the new rules or not, it could easily have implemented the 2020 policy for Doe’s hearing because it must implement that policy for all future Title IX complaints. Instead, defendant decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts. (Emphasis added.)

Moreover, the court found that “[s]uch disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process.” While the court acknowledged that Doe had produced limited evidence, at this early stage of litigation, that RPI faced significant criticism for its handling of sexual misconduct claims, the court found that even minimal evidence of such pressure was sufficient when combined with the type of clear procedural irregularities present in this case.

RPI also argued that it was bound to follow the Department of Education’s blog post “because it is bound to defer to an agency’s interpretations of regulations that it promulgates,” a principle known as “Auer deference” due to its origins in the Supreme Court case of . The court disagreed, holding that ED’s blog post on retroactivity was not the kind of “authoritative statement” entitled to Auer deference. Moreover, the court made clear that it did not favor RPI’s interpretation of ED’s blog post because of the “logistical problems” it presents, noting that it would be

difficult for a school to provide any kind of timeframe for sunsetting its policies that predate the new Title IX rules when the anchoring principle keeping those policies alive is the hypothetical possibility that new sexual misconduct claims for sexual assaults that took place before August 14, 2020, could arise. The absurd—yet necessary— result of an institution following the OCR post’s guidance to the letter would be that school’s indefinite maintenance of an entire alternative procedure, perhaps behind a pane of glass labelled “Break in Case of Emergency,” just in case a claim of sexual assault allegedly occurring before August 14, 2020 should arise.

The court’s decision here has significance beyond just the question of retroactivity. As Michael Thad Allen and I , many schools are superficially complying with the regulations by adopting new, compliant policies for “Title IX sexual misconduct,” but also maintaining separate policies covering broader categories of sexual misconduct. 

In some cases, schools have even indicated that they may go for two bites of the apple by trying students for the same conduct under both sets of policies. At , for example, “if the facts or occurrences forming the basis of a formal complaint of Title IX sexual harassment would also constitute a violation of other university policies,” respondents may be subject to two separate conduct processes that would “proceed concurrently.” For campus disciplinary attorneys who will need to push back against policies like this, the RPI opinion is a powerful tool in our arsenal, suggesting that a school’s decision to offer fewer procedural protections when it has the setup in place to offer more may itself be evidence of sex discrimination.

In addition to challenging RPI’s decision to apply its old policy, John Doe also alleged that RPI selectively enforced its policies in a discriminatory way.

In addition to challenging RPI’s decision to apply its old policy, John Doe also alleged that RPI selectively enforced its policies in a discriminatory way. Doe and his accuser, Jane Roe, both brought claims against each other stemming from the same incident. Doe claims he was extremely drunk and remembers only portions of his sexual encounter with Roe, but that he remembers Roe pressuring him to engage in unprotected sex and to put his hands around her neck, things he claims caused him so much psychological damage that he was forced to take a medical leave from school. Roe, by contrast, alleges that Doe put his hands around her neck in a non-sexual way during an argument, and also that he engaged in sexual activity with her without her consent.

RPI found Doe responsible while dismissing his claim against Jane Roe. The court found that RPI applied different standards to the two complaints. Specifically, in its decision finding Doe responsible, RPI “noted that Doe’s complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe.” The court noted that neither of these requirements — that alcohol consumption be voluntary, or that an incapacitated person not be the initiator of sexual contact — was actually found in RPI’s 2018 policy, and that “Roe’s complaint arising out of the same encounter was not subjected to any of these fabricated requirements.” The court wrote:

[T]he female’s complaint proceeded without issue, the male’s was struck down in part on grounds not contemplated anywhere in the policy’s definition of consent. That inequitable treatment provides not inconsiderable evidence that gender was a motivating factor in RPI’s treatment of Doe.

A party seeking an injunction also has to demonstrate that they will suffer irreparable harm if the injunction is not issued. RPI argued that any harm to John Doe was speculative because he could not know the outcome of his disciplinary proceedings. The court rejected that argument in no uncertain terms, pointing out that his fear was not necessarily of the outcome, but of being subjected to a discriminatory process: “It is the fear of gambling his future on a rigged game that Plaintiff asks to be freed from, not the fear of losing the game itself.”

The court recognized why universities may be tempted to “favor women over men” in this context, writing: 

By their very nature, these claims typically involve a level of privacy that undercuts the availability of witnesses, to make no mention of the stigma that attaches so easily to sexual assault victims, the profound psychological trauma that inevitably follows sexual assault, or the age-old stereotypes that call listeners to disbelieve complainants—especially, historically speaking, women. Much work must be done to ensure that sexual predators are called to justice, and the Court does not shrink from that truth.

But the court held that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” And, the court said, John Doe had presented strong evidence that “RPI has come down on the opposite side of that truth.”

You can read the full decision here: