Cases & Developments

Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss.  Plaintiff, a student at Marshall University who had been the subject of multiple Title IX complaints, brought Title IX retaliation and selective enforcement, due process, equal protection, and intentional infliction of emotional distress claims against the University and its Title IX Coordinator, asserting numerous procedural irregularities in the handling of the investigation and resolution of a complaint made by Jane Roe, against whom he had also made a cross-complaint.  The court permitted plaintiff’s retaliation claim to proceed, finding he had sufficiently alleged that the University solicited Roe’s complaint after he had succeeded in getting earlier complaints against him dismissed.  It permitted his selective enforcement claim to proceed, finding his allegations of “numerous, lopsided, and often significant procedural defects” sufficient to raise an inference that they resulted “not by simple human error.”  It similarly found his allegations of differences in the University’s handling of his complaint as compared to Roe’s sufficient to permit his equal protection claim to proceed.  It, however, dismissed his due process claim, finding the wrongs alleged insufficient to assert a constitutional deprivation.  Finally, it permitted his IIED claim against the Title IX Coordinator to proceed, finding he had sufficiently alleged violations of clearly established rights.   

Opinion and Order granting Defendant’s Motion for Summary Judgment.  Plaintiff, a former student at Macalester College, brought Title IX claims against the College after he was expelled for domestic violence, stalking, and harassment of his former girlfriend, Jane Roe.  In granting summary judgment in favor of the College, the court held that plaintiff’s selective enforcement theory failed, finding that Roe was not a similarly situated comparator in large part because the College dropped its investigation against her due to plaintiff’s own lack of cooperation.  The court also held that plaintiff’s assertion of procedural irregularities failed, finding (1) that the College did not investigate his “consent” defense because he had consistently denied Roe’s allegations and (2) that College did not interview all of the plaintiff’s suggested witnesses because its practice was to interview only witnesses who could offer “firsthand knowledge” of the facts at issue.  

Memorandum and Order granting Defendant’s Motion for Judgment on the Pleadings.  Plaintiff, a graduate of and former cardiology fellow at the University of Nebraska Medical Center (UNMC), sought to recover damages related to alleged humiliation, mental anguish, suffering, anxiety, and inconvenience she asserts resulted from the deliberate indifference of UNMC officials to her complaints of sexual harassment by other UNMC fellows.  In granting judgment on the pleadings in favor of the University, the court held that the Supreme Court’s holding in Cummings v. Premier Rehab Keller, P.L.L.C. (2022) also applies to claims for emotional distress damages under Title IX and that plaintiff’s claimed damages, accordingly, are unrecoverable.  

Opinion and Order granting Defendants’ Motion to Dismiss.  Plaintiff, a Columbia University student who alleged she was sexually assaulted by John Roe in January 2019, brought a deliberate indifference claim against the University after an investigation and hearing determined that Roe was not responsible for violating the University’s Gender-Based Misconduct (GBM) Policy because she was able to consent to the sexual encounter that gave rise to the allegations.  In granting the University’s motion to dismiss, the court held that plaintiff’s allegation that her avoidance of the University’s main library out of fee of seeing Roe did not deprive her of access to an educational opportunities or benefits because the University had nearly two dozen other libraries she could use.  Although plaintiff alleged that the University’s GBM Policy in 2019 was ambiguous and did not provide her with the ability to present expert witnesses and to cross-examine Roe, the Court held that her claim that the University responded unreasonably failed, noting its timely response when she filed her complain, extensive investigation, subsequent detailed report and hearing, and opportunity for plaintiff to appeal, which she declined.