Education Law Notes  

The recent wave of Title IX complaints filed with the United States Department of Education’s Office for Civil Rights [“OCR”], claiming that colleges and universities were either ignoring or mishandling reports of sexual assaults has underscored the importance of implementing effective student sexual harassment policies and procedures. At the same time, the recent case of Wells v. Xavier University serves as a cautionary note that in responding to claims of sexual assault, educational institutions must ensure that their procedures are applied equitably and that predetermination does not supplant proper investigation.

In Wells, the plaintiff was accused of rape in July 2012, following what he alleged was consensual sexual relations with his dormitory’s resident advisor. Multiple witnesses who saw the resident advisor shortly after the sexual encounter indicated that her demeanor was completely normal, and a subsequent medical examination showed no trauma. Based upon his investigation, the county prosecutor developed reservations about the female student’s veracity, but despite the prosecutor’s recommendation to Xavier’s president that the school drop the matter, Xavier’s University Conduct Board [“UCB”] convened a hearing and found that Mr. Wells had committed a “serious violation” of the school’s code of conduct, which resulted in his expulsion.

Mr. Wells ascribed Xavier’s actions to the fact that a few months earlier -- in both January and February 2012 -- OCR had initiated investigations into the school’s handling of student sexual assaults, including one in which a male student accused of assaulting two women had allegedly been permitted to remain on campus. Xavier ultimately entered into a resolution agreement with OCR, and Mr. Wells claimed that the university and its president were intent on making him “a scapegoat so as to demonstrate [to OCR] a better response to sexual assault.” In his federal court complaint, Mr. Wells alleged two violations of Title IX as well as a number of common law claims, including libel, infliction of emotional distress, negligence and breach of contract.

On March 12, 2014, a federal judge in the Southern District of Ohio denied Xavier’s Motion to Dismiss Mr. Wells’ Title IX and common law claims. It is important to note that a dismissal motion such as Xavier’s is designed to test the legal sufficiency of the particular cause of action to which it is directed, and in adjudicating the motion, the court cannot consider extrinsic evidence but is instead limited to the allegations in the complaint, which must be construed in favor of the party opposing the motion. Consequently, in denying Xavier’s Motion to Dismiss, the court was not saying that the plaintiff had proven his case but simply that he had adequately alleged one. In fact, despite denying Xavier’s motion as it pertained to one of Mr. Well’s Title IX claims, the court noted: “Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen.” Nonetheless, approximately one month following the court’s decision, Xavier settled the lawsuit, a development which at the very least invites further consideration of Mr. Well’s claims, particularly as to Title IX.

Mr. Wells alleged two violations of Title IX, first claiming that both the process and the substance of the disciplinary proceedings were skewed against him due to his gender. Specifically, the plaintiff claimed that Xavier had “rushed to judgment,” had failed to train the UCB members, had ignored the county prosecutor, had denied the plaintiff legal representation, the right to cross-examine, and the right to character witnesses although the female student was afforded that right. He asserted that Xavier subjected him to this disparate treatment simply because he was male -- a violation of Title IX -- and because the university wanted to show OCR that it was taking sexual assault accusations seriously. Referencing these same actions, as well as the university president’s awareness of them, Mr. Wells alleged in his second Title IX claim that the president – and, by extension, Xavier – had been deliberately indifferent to this discriminatory treatment.

Significance of the Wells case

Even in its truncated form, the court’s decision in Wells serves to remind educational institutions that when sexual assault or harassment is alleged, guilt should not be a foregone conclusion, for as is true with denials, accusations are not, in and of themselves, dispositive. To the contrary, while schools must respond to such accusations in a prompt and meaningful manner, they are also obligated to ensure that investigations are approached -- and subsequent disciplinary proceedings conducted -- in a fair, balanced and open-minded manner, regardless of the genders of the respective parties. Thus, those individuals and bodies vested with the responsibility for investigating claims and issuing disciplinary consequences must, as OCR itself requires, have adequate training on both the substance of Title IX and the hearing procedures that the school has adopted in accordance with Title IX.