On August 7, 2024, the U.S. Court of Appeals for the Sixth Circuit held that Correia & Puth’s client, using the pseudonym “Jane Doe,” can proceed with her claim of retaliation under Title IX against the University of Kentucky. The Sixth Circuit held that the University’s adverse conduct toward Doe in connection with a student disciplinary proceeding against a classmate who raped her could constitute unlawful retaliation under Title IX. It also held that Doe could pursue a retaliation claim against the University because of its failure to investigate and take appropriate steps after learning that its police chief obstructed a witness from attending the disciplinary hearing. The Sixth Circuit acknowledged that several fact issues in the case are not proper for resolution by a court and should instead be decided by a jury. The case returns to the trial court for further proceedings.
In October 2015, Jane Doe filed a lawsuit against the University of Kentucky to hold it accountable for its conduct during three student disciplinary hearings adjudicating Doe’s report of a classmate who had raped her. After she filed her lawsuit, the University repeatedly delayed the scheduling of a fourth hearing, which finally took place in January 2017, almost a year-and-a-half after Doe filed her lawsuit and nearly two and a half years after Doe first reported the rape. By the time of the fourth hearing, Doe had moved out of the University’s dorms and withdrawn from classes. In the fourth and final hearing, the panel found Doe’s assailant not responsible. Doe appealed, and the University upheld the decision.
The Sixth Circuit held that the University was “wrong as a matter of law” when it argued that that the “student conduct hearings [Doe] participated in are not educational programs or activities” encompassed within Title IX. First, it rejected the University’s argument that its actions in the fourth hearing were not school-related because Doe was no longer a student at that time, noting that the statutory language of Title IX protects any “person,” students and non-students alike. The Court noted the University’s argument would not “make sense,” for it would mean that a “sexual assault victim who drops out of school given the trauma, or one who graduates before filing suit, would have no recourse.” Additionally, the Sixth Circuit described the University’s argument that its school disciplinary proceedings are not encompassed within Title IX’s protections as running “afoul of [Title IX’s] text and Supreme Court precedent.” “Student or not, Doe availed herself of the University's disciplinary process and participated in the hearings, making the University’s adverse actions regarding those hearings actionable.”
Furthermore, the Sixth Circuit evaluated the University’s actions in four categories, finding that each (viewed individually or in combination) could be sufficiently adverse to be actionable:
- After Doe filed her lawsuit, the University delayed the fourth hearing for almost a year-and-a-half and failed to hold a pre-hearing meeting that could have resolved the matter, in violation of its own policy. The Sixth Circuit held that “[t]hat’s enough to dissuade a reasonable person from making or supporting a charge of discrimination.”
- During the fourth hearing, the University undertook a host of missteps in prosecuting the case against Doe’s assailant, and after the hearing panel found in his favor, it “actively undermined” multiple aspects of her appeal.
- The Court recognized that decisions from the University’s hearing panel and appeal board could be sufficiently adverse to substantiate claims of retaliation. The hearing panel’s decision finding the assailant not responsible was riddled with “procedural and substantive concerns,” with substantive decisions that were “specious and represent[ed] a hostility toward [Doe] that did not exist before she filed suit.” When the University’s appeal board affirmed the hearing panel’s decision, it “dismissed Doe’s concerns that the University had not presented the best case against” her assailant.
Importantly, in evaluating a fourth category of the University’s actions, the Sixth Circuit held that Doe could prove retaliation because of the University’s failure to adequately respond when it learned that its police chief obstructed an important witness from testifying at the hearing. “[W]hen a university does not respond to a known retaliatory action because a person has previously complained of sex discrimination, such inaction amounts to the institution’s own intentional violation of Title IX.” Doe raised concerns to the University, and it independently received an anonymous report, that its police chief deliberately prevented the officer who filed the initial report of Doe’s assault from testifying at the fourth hearing. Although the University contended that it investigated the concerns raised by Doe, the Sixth Circuit held that whether the University’s investigation was adequate was a question of fact for a jury to decide. Even more, when the University independently received an anonymous message concerning the Police Chief’s misconduct, it declined to further investigate or even inform Doe or the appeals board that it had received it. Therefore, a jury could find that the University retaliated against Doe in its response to allegations about obstruction by its Police Chief.
On the question of causation, the Court found a significant enough difference between the University’s actions toward Doe before as compared to after she filed her Title IX lawsuit to demonstrate a causal connection between her lawsuit and the University’s retaliatory conduct. “The juxtaposition of the University's conduct during the first three hearings (before her lawsuit) compared to the fourth (after her lawsuit) leads to a reasonable inference that the University engaged in these adverse actions because of Doe’s lawsuit and casts doubt as to whether the University’s explanations were the actual reason for its conduct.” Although the University presented various non-retaliatory reasons for each of its actions, the Sixth Circuit held that these explanations are more properly presented to a jury than to the court.
Linda M. Correia and Andrew M. Adelman represent Jane Doe.
The case returns to the Kentucky federal trial court.
