John Doe v. Renssellaer Polytechnic Institute (RPI), U.S. Dist Ct., N Dist. NY (October 10,2020).
The trial court granted a motion for a temporary restraining order by Plaintiff Doe to halt an imminent disciplinary hearing regarding an allegation he had violated the RPI sexual assault policy. While granting TROs against college disciplinary proceedings is rare, it has become a more common tool used by accused students, with increasingly frequent success. This is not even the first such injunction against RPI.
Summary of Facts:
- Doe and the Complainant (Roe) met on the on-line dating site, Tinder in late fall, 2019.
- Upon returning to school in Spring 2020 they met in person and engaged in consensual sex on multiple occasions.
- Roe alleges she discovered Doe recording her as she was dressing. Doe assured her the video was deleted.
- Roe invited Doe to her residence hall to further discuss the recording incident; Doe consumed multiple drinks of vodka that evening and they subsequently engaged in consensual sex.
- Doe alleged that Roe, who remained sober, plied Doe with alcohol and pressured him to have intercourse a second time. Doe refused because he had only brought one condom, but eventually did have vaginal intercourse with Roe as well as anal intercourse (briefly). Doe claimed he was too drunk to clearly assess the situation or even get out of bed following intercourse.
- Doe alleges he suffered psychological damage from these events and subsequently took a medical leave from school.
- Roe alleged that during that evening, following an argument with Doe, he put his hands around her neck and squeezed, as well as rubbed his penis over her buttocks and legs without her consent.
- Roe’s RA reported a sexual assault between Doe and Roe to the Title IX Office on 1/23/2020 and Doe was notified of the investigation on 1/31/2020.
- Doe filed an allegation against Roe on 6/9/2020 alleging he was too intoxicated to consent to sexual activity during their January encounter.
- RPI rendered a finding of responsibility against Doe on 8/4/2020 based on the school’s 2018 Sexual Misconduct Policy. Doe requested a hearing to challenge this finding. The same day RPI dismissed Doe’s complaint against Roe. On August 11, 2020 Doe requested a hearing on this dismissal.
- On August 14 the new Department of Education (ED) Title IX regulations went into effect.
- Doe sought to have the additional protections provided in the new regulations applied to the remainder of RPI’s investigation of the allegations against him and argued that the upcoming hearing be conducted pursuant to the new regulations. RPI declined to apply the new regulatory hearing standards.
- Doe filed this lawsuit, alleging that the refusal of RPI to apply the new regulatory standards constituted sex discrimination under Title IX. Doe also filed a TRO to prevent RPI from moving forward with its hearing against him.
- Doe claimed that RPI discriminated against him on the basis of sex by electing to hold his hearing under RPI’s 2018 policy rather than the 2020 policy. Doe also claimed that RPI violated Title IX by selectively enforcing its misconduct policies to his detriment by dismissing his complaint against Roe but allowing her claim to proceed.
Findings and Significant Issues:
- While the underlying facts in this case are complicated, the significance of this case is in the courts view of the application of the intervening ED regulations that took effect 8/14/2020.
- The new regulations provide substantial new “rights” for a Respondent in a sexual harassment case (“sexual harassment” as defined by the new regulations includes sexual assault).
- However, the new regulation’s preamble as well as a blog post published by ED stated that the department, “will not enforce [the new rules] retroactively”. According to ED, the new rules only apply to sexual harassment incidents that “allegedly occurred on or after August 14, 2020.”
- The court stated that while ED would not have punished RPI for failing to apply the 2020 procedures, RPI had the new procedures in place and ready to go but chose not to implement them before the official August 14th implementation date, and instead maintained two parallel procedures, on for pre-August 14th cases, and one for post-August 14th cases.
- The court found that by maintaining two procedures, RPI created an “irregular adjudicative process” and applied a process with lesser standards of due process protection when it could have provided one with greater protections as requested by Doe. The court held that RPI chose not to apply the new regulations for their own convenience and could just as easily have decided to move forward under the 2020 policy for all cases.
- The court, relying on the Menaker case, stated that “when combined with clear procedural irregularities in a university’s response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination.”
- The court granted Doe’s requested injunction, stating that he had met all requisite elements for a temporary restraining order: a likelihood of irreparable harm; a likelihood of success on the merits; the balance of hardships; and a finding for Doe is in the public interest.
- Although this decision was not made on the merits of the claim itself, rather on the foundation for a TRO, the court was clearly swayed by the importance of “rights” conferred by the new regulations and took a very negative view of RPI’s operation of parallel grievance processes.
- The court disregarded language in the preamble to the regulations, stating that the Auer deference would not apply in this set of circumstances. While courts will frequently look to the preamble to help sort out confusing language in the regulations, this court found language in the preamble to be “unclear” in regard to retroactivity. As practitioners we need to be cautious not to read the preamble as law itself.
- The court found RPI’s argument about the “drop dead date” for implementation of the regulations and accompanying grievance process to be disingenuous because it is difficult, if not impossible for a school, to clearly identify a sunset provision for their grievance processes in place prior to August 14 when that is anchored to the principle that the pre-regulation grievance processes must remain in place, potentially in perpetuity if a person who experienced a potential violation of sexual harassment prior to August 14, 2020 waits many years to make a complaint.
- Thus, it would be a good idea for institutions to establish and publish a sunset provision for implementation of pre-regulation grievance processes, and many will want to reconsider application of prior procedures at all. Commonly, when a new regulatory regime is enacted, colleges apply policy definitions that were in place at the time of the incident, but the procedures that were in place at the time of the resolution. This becomes complex in cases like Doe’s, which straddle an implementation deadline.