Cases & Developments

Opinion and Order granting Defendant’s Motion to Dismiss.  Plaintiff, a student at Florida Gulf Coast University (FGCU), brought a Title IX erroneous outcome claim against the University after he was given a four-month suspension with an additional eight-month disciplinary probation in 2020 for sexual misconduct that took place in 2019.  While the investigation was underway, FGCU adopted a new Title IX policy, but it continued to apply its older policy to plaintiff’s case.  As a result, plaintiff did not receive a copy of the investigative report and was unable to cross-examine the complainant because she did not attend the hearing.  In dismissing his complaint, the court found that plaintiff presented no facts showing that the application of the prior policy indicated gender bias.   

Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss.  Plaintiff, a former student-athlete at Franklin & Marshall College, brought Title IX and contract claims against the College after it suspended him for sexual misconduct.  In March 2020, while in Florida for a game, plaintiff was arrested and charged with sexual assault of a fellow student.  The College proceeded with a Title IX investigation, though plaintiff did not participate due to the pending criminal charge.  Days after the College found him responsible, Florida dropped its case for lack of evidence.  Concurrently, plaintiff complained to the College that a professor had sent him multiple suggestive and demanding emails.  The court dismissed plaintiff’s erroneous outcome claim, finding that although he had cast doubt on the accuracy of the College’s investigation, the assertion of a petition campaign against a fraternity on campus was insufficient to allege that external pressures created gender bias in his own investigation.  It dismissed his selective enforcement claim, finding that the professor against whom he had complained was not an adequate comparator.  The court dismissed his deliberate indifference claim, noting that (1) the College assigned a different professor to supervise his coursework, (2) it launched an investigation within two days of the report, and (3) he was suspended for most of the time it took the College to investigate the professor.  It permitted him to proceed on his contract claims noting that he had sufficiently alleged multiple departures from the College’s disciplinary policies and procedures.  

Order granting-in-part Plaintiff’s Motion for Partial Summary Judgment and denying Defendants’ Motion for Summary Judgment.  Plaintiff, a former student at the University of Mississippi, brought Title IX and due process claims against the University after it suspended him for engaging in sexual activity with an incapacitated individual.  The University’s investigative report presented conflicting statements as to the complainant’s level of intoxication, but it did not include discoverable exculpatory statements made to University Police.  Plaintiff did not receive a copy of the report prior to his hearing, and the complainant did not participate in the hearing.  The court granted plaintiff’s motion for partial summary judgment on his due process claim, finding that with a lack of objective evidence and conflicting statements about what happened “[a]t a minimum, [plaintiff] should have been allowed to submit written questions” to test the complainant’s credibility.  It denied summary judgment on his Title IX claim, however, holding, first, that conflicting statements as to whether the complainant was intoxicated and whether the encounter was consensual raised fact questions of erroneous outcome.  It further held that plaintiff raised fact questions of gender bias by citing (1) deposition testimony from a member of the disciplinary panel suggesting different standards for males and females regarding when alcohol use affects ability to consent; (2) alleged bias in training materials; (3) exclusion of potentially exculpatory statements and evidence from the investigative report; and (4) a lack of opportunity to cross examine the complainant.