Eighth Circuit Upholds Dismissal of Title IX Erroneous Outcome Claim

By: Saundra K. Schuster, Esq., TNG

Rossley v. Drake University – Eighth Circuit Upholds Dismissal of Male Student’s Title IX Erroneous Outcome Claim

U.S. Ct. of Appeals, 8th Cir. (November 5, 2020)

PROCEDURAL POSTURE

Thomas Rossley, Jr. was found responsible for sexually assaulting a female student and was expelled from Drake University. Rossley subsequently sued Drake University alleging eight violations of law, including Title IX and ADA as well as state law claims. The District Court granted summary judgment for Drake on all claims but Title IX, upholding the Title IX claims under a selective enforcement theory. Although Rossley stipulated to the dismissal (without prejudice) he challenged the court’s summary judgment ruling on his Title IX claim based on an erroneous outcome as well as the ADA claim. The court reviewed the appeal de novo (that is, they chose to review all the underlying facts of his original claim). The 8th Circuit upheld the dismissals by the District Court.

BACKGROUND INFORMATION

This case is very fact-intensive. Drake had two documents that governed the way in which the University addressed sexual misconduct, its Code of Student Conduct that defined sexual misconduct and stated that Drake may, “take whatever disciplinary action is appropriate to protect the safety and well-being of students”, and a Policy on Sexual and Interpersonal Misconduct that addressed the policies and procedures regarding sexual misconduct consistent with Title IX. Drake’s policy defined consent and incapacitation. The Dean of Students oversaw the investigation of sexual misconduct complaints and had sole discretion to determine the initiation of formal disciplinary procedures.

Drakes’ procedures provided for a live hearing, advisor of choice, cross-examination and allowed for witnesses. The University limited the role of advisor solely to providing counsel and advice, however, an attorney representative was allowed to make opening statements, closing arguments, and present written questions to witnesses. The parties could cross-examine witnesses but not each other. Questions between the parties were only allowed to be presented in writing and read by the hearing officer. The Respondent could appeal both an adverse finding and the sanction to a three-member panel. The President of the University reviewed all recommendations from the appeal panel, and if approved, would authorize the Dean of Students to impose sanctions including expulsion.

FACTS OF THE CASE

Student Jane Doe reported that another student, Rossley, sexually assaulted her. She reported that she had consumed a large amount of alcohol and blacked out. She next remembered being on a bean bag chair in Rossley’s room with Rossley raping her. The case was investigated by Mary Sirna a former sex crime prosecutor and interim Title IX coordinator at Iowa State University. During his second interview, Rossley also claimed to be a victim of sexual assault from that incident because he claimed to be in a black-out as a result of his ADHD medication and his participation in a drinking game earlier in the evening. He initiated a complaint against Doe in that interview.

Multiple witnesses described Doe as, “very drunk” and as “stumbling over herself” and she described that she threw up after arriving at Rossley’s fraternity house. Rossley reported that Doe performed oral sex on him in a car and then he blacked out. He remembered kissing Doe goodnight and her leaving. Rossley’s roommate reported not seeing or hearing anything indicative of sexual activity in the room. Doe reported waking to Rossley penetrating her and wearing a yellow condom. Doe went to the hospital the following day and reported trying to reconstruct the evening and felt she did had not been capable of giving consent

In reviewing the conflicting testimony, the investigators determined there was sufficient corroborating evidence to support Doe’s claim of incapacitation. However, Rossley’s credibility was in question because — in spite of his statement to investigators that he only remembered oral sex and Doe kissing him goodbye — a witness stated that Rossley told him he hooked up with Doe and “wasted a condom” because he couldn’t ejaculate. Although the investigators mentioned Rossley’s suggestion that he was a victim of sexual assault, the investigator did no further investigation and made no findings regarding that allegation.

Rossley’s father, a Drake Trustee, insisted that Rossley’s case be moved to a formal hearing because the investigators failed to investigate Rossley’s claim of having been sexually assaulted. Additionally, the father demanded accommodation for Rossley’s disabilities during the hearing. The investigator testified at the hearing that she found Doe to be more credible than Rossley and recommended a sanction of expulsion. Eleven witnesses provided testimony at the hearing and at the conclusion, the hearing officer determined Rossley violated Drake’s policy on sexual assault and recommended expulsion one month shy of Rossley’s scheduled graduation. The Appeal Panel and the President concurred in the finding and the expulsion. Rossley sued Drake.

Rossley based his Title IX claim on the Yusuf v. Vassar College case, claiming that Drake engaged in both selective enforcement and an erroneous outcome, and that material facts evidenced gender bias that resulted in the erroneous outcome. The district court applied the Yusuf framework and dismissed the erroneous outcome claim. Upon appeal, the Court declined to apply the Yusuf framework, instead adopting the more recent approach of the Seventh Circuit in Doe v. Purdue University requiring that, “a plaintiff must allege adequately that the University disciplined [the plaintiff] on the basis of sex”. The Eighth Circuit explained that the Yusef categories of selective enforcement and erroneous outcome were merely ways to describe the way in which a plaintiff could show that sex was a motivating factor. In this appeal, the Court upheld the finding of the District Court and said there was no genuine dispute of fact and that Rossley had not proved that being male was a motivating factor in Drake’s expulsion. The court cited to Sahm v Miami University in its decision that “Demonstrating that a university official is biased in favor of the alleged victim of sexual assault claims, and against the alleged perpetrators, is not the equivalent of demonstrating bias against male students.”

KEY TAKEAWAYS

  • The court stressed multiple times the importance of gender-neutral language in Drake’s policies. Schools should ensure that any policy addressing sex/gender misconduct or discrimination is not gender biased, including any language related to victimology.
  • Failing to investigate Rossley’s claim of sexual assault represents a danger area for schools. An institution should duly document, review and, as appropriate, investigate all claims of sex-based misconduct, even when made as counterclaims, unless they are purely motivated by retaliatory intent.
  • The Court’s movement away from selective enforcement and erroneous outcome and toward the 7th Circuit’s “plausible inference” analysis in the Purdue case suggest that institutions need to pay close attention to all factors that suggest that an action by the institution is based on an individual’s gender. While the burden of proving that bias rests with the plaintiff, defendants often find themselves in the awkward position of arguing that any bias was the result of bias against respondents rather than bias against men.
  • The 2020 Title IX regulations place heavy emphasis on conflicts of interest and bias. The fact that the investigation was conducted by a former sex crimes prosecutor could easily have raised the bar for further scrutiny. While this may not be inherently biasing, schools should be aware of investigators’ current or prior work or engagements that may suggest conflict or bias and ensure that any documentation in an investigation is clearly neutral.

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