Riding the Wave or Drowning?: An Analysis of Gender Bias and Twombly/Iqbal in Title IX Accused Student Lawsuits

By Bethany A. Corbin

Abstract

In April 2011, the Department of Education’s Office for Civil Rights shook the foundation of campus sexual assault policies by publishing a “Dear Colleague” letter (“the 2011 DCL”). The 2011 DCL emphasized that a university’s failure to address sexual assault constituted gender discrimination in violation of Title IX and further clarified a university’s role in preventing, responding to, and correcting sexual abuse. This letter symbolized the Obama administration’s commitment to—and aggressive enforcement of—Title IX. Universities reacted by rebuilding and strengthening their administrative responses to sexual assault in a decidedly provictim manner. Unfortunately, these alterations to the campus disciplinary structure sacrificed accused sexual assault perpetrators’ rights to fairness and due process. To remedy perceived errors in disciplinary proceedings, accused assailants are increasingly suing their universities for reverse gender discrimination under Title IX. Alleged perpetrators argue that men are invariably found responsible for sexual misconduct due to a politicized sexual assault climate.

This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation that a plaintiff need not plead a prima facie case of discrimination in the complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in reverse Title IX suits where the court contends the causational element has been insufficiently pled.