Two Key Lawsuits Lead Counterattack Against Title IX Overreach

Hyper-aggressive federal officials have taken the vague language in Title IX of the 1972 Education Act Amendments and treated it as if it gave them plenary authority to control anything on a college campus having in any way to do with sexual misbehavior. The wording says: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

The members of Congress who passed the bill and President Nixon who signed it thought they were acting to keep schools and colleges from discriminating against women—not admitting them or treating them differently from male students. If someone had asked any of them if this meant that federal bureaucrats could dictate to colleges how they must handle cases where individual students were accused of sexual assault, the reply would have been, “You’ve got to be kidding—of course not.”

But, owing to the way “administrative law” allows the bureaucrats charged with enforcing statutes to interpret them in ways that amount to writing new laws, we have reached the point where federal bureaucrats are the overlords of higher education. In particular, officials in the Department of Education’s Office for Civil Rights (OCR) have pushed their ideas so far past the written law that we are now getting a strong legal counterattack.

One suit, Doe v. Lhamon, was filed June 16 in federal court in the District of Columbia. The unnamed plaintiff is a former University of Virginia Law School student who was accused of sexual assault in 2013. The evidence that the encounter was not consensual, as Doe stated, was weak. But the university, under pressure from OCR to use a “preponderance of the evidence” standard, eventually found that he was guilty.

Mr. Doe’s case was heard by a retired justice of the Pennsylvania supreme court who called it “very difficult” and emphasized that she was compelled by OCR to use “the weakest standard of proof.”

Mr. Doe’s degree from the law school was held up for a year by the proceedings. Because he was found (under that weakest standard of proof) to have committed an assault, he will suffer a lifetime ban from all University of Virginia property and activities and will also have a permanent stain on his record that may inhibit his employment prospects.

As Robert Shibley, executive director of the Foundation for Individual Rights in Education, which is sponsoring the suit, remarks here, “OCR has acted as though decreasing due process rights will increase justice. In fact, the opposite is true. Real people’s lives are being irreparably harmed.”

The crucial element in this case is its attack on the legitimacy of the process through which OCR has compelled colleges to obey its directives. Doe argues that the OCR’s 2011 “Dear Colleague Letter” that admonished schools to adopt its preferred low-evidence, high-conviction approach to allegations involving sexual misconduct did not comply with the Administrative Procedure Act (APA) and is thus void.

Under the APA, all administrative agencies must notify the public of proposed substantive changes in rules, solicit feedback, and allow time for public comment before they make a rule binding.

OCR did none of that before sending out its “guidance” to colleges.

Plaintiff Doe is asking the court for a declaratory judgment that OCR’s “guidance letter” violated the APA, for an order vacating it (enabling schools to go back to their own preferred policies and standards in handling these cases), and money damages for his costs.

This case could have enormous ramifications (and not just in this specific dispute) if the court rules that the Department of Education cannot turn a blind eye to the APA.

The other case involves Yale University. It is being sued by Jack Montague, who was captain of its remarkably successful basketball team last season. The team won the Ivy League championship and managed to win its first two games in the NCAA tournament—without Montague, who was expelled from the university in February.

Montague was expelled because Yale’s Title IX enforcement bureaucracy saw a chance to, in big game hunting parlance, “bag a trophy.”

He and a female Yale student had on several occasions had consensual sex. Nearly a year after the two had slept together, one of the university’s Title IX administrators, Angela Gleason, heard from the woman’s roommate that she’d had a “bad experience” with the basketball star.

Gleason tried to talk the student herself into filing a complaint against Montague, but she wouldn’t, so Gleason instigated the case herself. 

Under Yale’s rules, administrators are only allowed to do that in cases where there is “serious risk to the safety of individuals or the community.” But nothing even remotely suggested that Montague’s presence on campus posed a “serious risk.” Something else must have prompted university officials to approve the extraordinary treatment given Jack Montague.

In a recent essay about the case, Brooklyn College history professor KC Johnson (who wrote about the tenth anniversary of the odious Duke lacrosse case for the Pope Center) draws the obvious conclusion that Gleason wanted the case “because Montague was such an inviting target—expelling a high-profile star athlete would prove Yale’s ‘seriousness’ about confronting sexual assault.”

I think a jury will have little trouble coming to that conclusion, especially in view of the evidence that Montague’s extreme punishment exceeded that of other Yale students who had been found guilty under pressure from Washington.

Another revealing aspect of the case is that many Yale students rallied to Montague’s defense after the decision to expel him. In particular, the basketball team donned warmup jerseys bearing his name at games after their captain had been expelled. That led to vitriolic criticism from some student groups. Nothing unusual in that, but then the university demanded that the team issue an apology to those who were so offended at quiet dissent from the official line that Montague was unfit to be a student at Yale.

Regarding that, Professor Johnson pointedly asks “If the university were so sensitive to portraying Montague as guilty that it pressured other students to refrain from pro-Montague statements, how fairly could it have treated him?”

The lawsuit against Yale (Montague’s complaint is available here) seeks his reinstatement in good standing and that all records regarding his case be expunged.

It also claims that Yale is guilty of a breach of contract with Montague in that it failed to honor its implied covenant of good faith and fair dealing, and has defamed him. I think that’s a crucial point, since many colleges and universities act these days as if students were their serfs to treat however they wish. This case will remind them that they’ve entered into contracts with students.

In an intriguing twist, Montague also argues that Yale itself violated Title IX because it discriminated against him because of his gender.

Finally, Montague asks for monetary and punitive damages.

By choosing to let its hyper-aggressive Title IX bureaucrats have their way, Yale may be facing an extremely expensive day in court.

Just possibly, these two cases will eventually be seen as the high water mark of the Education Department’s assault on university autonomy, at least when it comes to allegations of sexual impropriety. If either or both are successful, in the future college officials won’t have to genuflect to the OCR’s wishes and will have to contemplate the costs if they breach their contracts with students and defame them.