Cases & Developments

Order denying Motion for Temporary Restraining Order. Plaintiff, a former student at Whitman College, brought Title IX, contract, and state Consumer Protection Act claims against the College and sought a TRO, after he was expelled for sexual misconduct. Plaintiff’s numerous factual allegations included internal and external pressures to prevent sexual misconduct, disproportionate adverse findings related to male students, unfair credibility and relevancy determinations, and sanctioning irregularities. The court, however, found none of these assertions sufficient to show a likelihood of success on the merits. Though it found that plaintiff established the likelihood of irreparable harm, the equities, including the burden on the College’s interest in maintaining and enforcing Title IX procedures, weighed against the TRO. Finally, the court held that a TRO was not in the public interest, noting that it “would embolden the targets of Whitman’s Title IX investigations to file suit in the hopes of attaining injunctive relief without providing evidence that the investigation was discriminatory” and “would likely discourage Title IX complainants from coming forward, placing the entire Title IX process at Whitman in doubt.”  

Opinion affirming-in-part, reversing-in-part, and remanding summary judgment in favor of the University. Plaintiff, John Doe, a former student at Rice University, brought contract and Title IX claims against the University after he was disciplined for recklessly exposing Jane Roe, a consensual sexual partner, to herpes. The Fifth Circuit affirmed summary judgment on Doe’s contract claims, finding he had not alleged a breach of the University’s Code of Conduct and noting that the Code expressly provided that its procedures “are not those used in court cases and are not intended to create contractual rights.” Viewing the evidence in the light most favorable to the nonmovant, the Fifth Circuit reversed summary judgment on Doe’s three asserted theories under Title IX. It found a material fact question as to erroneous outcome, noting that the record supported that Doe had informed Roe of his history with herpes. It found a question of selective enforcement support by allegations that the University did not investigate Doe’s claim that Roe had already contracted herpes and did not warn him of the risk she posed to him. Finally, it found a question as to archaic assumptions in the apparent expectation that it was Doe’s responsibility to explain to Roe the risk associated with consensual sex, even though the record indicated that she later explained to him how the herpes virus can remain dormant.    

Opinion affirming denial of administrative writ of mandate. Plaintiff, a student at California Polytechnic State University, San Louis Obispo, sought an administrative writ of mandate to overturn his one-year suspension for sexual misconduct, based on allegations of an unfair hearing and findings and sanctions that lacked substantial evidence. In affirming denial of the mandate, the California Court of Appeals held that the University followed its hearing procedures, which afforded plaintiff sufficient opportunity to respond to the charges and evidence and submit questions for the complainant through a hearing officer. It also found that the complainant’s testimony was supported by substantial evidence, noting that the hearing officer was in a position to evaluate the credibility of all testimony.