Thought Leadership

Avoiding Erroneous Outcomes: Lessons Learned from John Doe v. Miami University

February 15, 2018 Advisory

The Sixth Circuit Court of Appeals recently reversed a district court’s dismissal of equal-protection claims by John Doe, a Miami University student who was previously investigated by the university and found responsible for sexual assault. In light of this decision, higher education institutions should review their policies to ensure proper outcomes in Title IX proceedings.

The Sixth Circuit found that Doe had pleaded “sufficient facts to show circumstantial evidence of gender discrimination” by alleging that he and the complainant were similarly situated intoxicated students who engaged in sexual activity. When the university initially received a report that Doe may have violated the school’s Title IX policies, they investigated his conduct, but failed to investigate the complainant’s conduct after obtaining information indicating that she, too, may have violated the policy.

The Sixth Circuit found that Doe sufficiently pleaded the erroneous-outcome theory of liability under Title IX of the Education Amendments of 1972 by alleging facts that “cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding.” Specifically, at issue was the fact that a hearing panelist was mistaken about the applicable standard of consent and believed it to be “affirmative consent,” which is a standard far higher than articulated in the university’s policies. Additionally, the court found that the hearing panel’s failure to describe how they resolved inconsistencies in the complainant’s statement also created some doubt as to the accuracy of their decision.

The Sixth Circuit also held that Doe sufficiently pleaded allegations pertaining to his procedural due-process claim by alleging that the university did not provide him with access to his disciplinary file or the investigative report, in violation of his constitutional right as a student to be provided the evidence against him. Doe v. Univ. of Cincinnati, 872 F.3d 393, 399-400 (6th Cir. 2017).

To avoid erroneous outcomes and bias, and to preserve constitutional rights in Title IX proceedings, higher education institutions should consider the following:

  • Provide parties with evidence that will be used to make a determination in the Title IX proceedings.
    • This may be provided to the student in the form of an investigative report that summarizes the investigation, or otherwise via access to an investigative or disciplinary file.
  • Train hearing panelists.
    • Hearing panelists, investigators and decision makers involved in Title IX proceedings should receive training on the university’s Title IX policies and procedures and be aware of applicable standard-of-proof and policy definitions relevant to the case.
    • Investigative reports or hearing documents should include pertinent policy definitions (e.g. consent, incapacitation) and the relevant standard of review so that decision makers can easily refer to this information.
    • Investigators, panelists and administrators should complete unconscious (or implicit) bias training prior to working on or hearing a Title IX case.
      • This training can assist individuals in learning to acknowledge and redirect the positive or negative attitudes and stereotypes that unconsciously influence their actions and decisions.
  • Develop guidelines or factors to consider when determining whether to pursue an investigation into an accused student’s conduct without a complaint from the reported victim.
    • Follow these guidelines and train university employees on this analysis to ensure objectivity and consistency when making a determination regarding whether to proceed with an investigation.
Contact Us
  • Worldwide
  • Boston, MA
  • Chicago, IL
  • Denver, CO
  • Dublin, Ireland
  • Edwardsville, IL
  • Jefferson City, MO
  • Kansas City, MO
  • Las Vegas, NV
  • London, England
  • Miami, FL
  • New York, NY
  • Orange County, CA
  • Philadelphia, PA
  • Princeton, NJ
  • Salt Lake City, UT
  • St. Louis, MO
  • Washington, D.C.
  • Wilmington, DE
abstract image of world map
Boston, MA
800 Boylston St.
30th Floor
Boston, MA 02199
Google Maps
Boston, Massachusetts
Chicago, IL
100 North Riverside Plaza
Suite 1500
Chicago, IL 60606-1520
Google Maps
Chicago, Illinois
Denver, CO
4643 S. Ulster St.
Suite 800
Denver, CO 80237
Google Maps
Denver, Colorado
Dublin, Ireland
Fitzwilliam Hall, Fitzwilliam Place
Dublin 2, Ireland
Google Maps
Edwardsville, IL
115 N. Second St.
Edwardsville, IL 62025
Google Maps
Edwardsville, Illinois
Jefferson City, MO
101 E. High St.
First Floor
Jefferson City, MO 65101
Google Maps
Jefferson City, Missouri
Kansas City, MO
2345 Grand Blvd.
Suite 1500
Kansas City, MO 64108
Google Maps
Kansas City, Missouri
Las Vegas, NV
7160 Rafael Rivera Way
Suite 320
Las Vegas, NV 89113
Google Maps
Las Vegas, Nevada
London, England
Royal College of Surgeons of England
38-43 Lincoln’s Inn Fields
London, WC2A 3PE
Google Maps
Miami, FL
355 Alhambra Circle
Suite 1200
Coral Gables, FL 33134
Google Maps
Photo of Miami, Florida
New York, NY
7 Times Square, 44th Floor
New York, NY 10036
Google Maps
New York City skyline
Orange County, CA
19800 MacArthur Boulevard
Suite 300
Irvine, CA 92612
Google Maps
Philadelphia, PA
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Google Maps
Philadelphia, Pennsylvania
Princeton, NJ
100 Overlook Center
Second Floor
Princeton, NJ 08540
Google Maps
Princeton, New Jersey
Salt Lake City, UT
222 South Main St.
Suite 1830
Salt Lake City, UT 84101
Google Maps
Salt Lake City, Utah
St. Louis, MO
7700 Forsyth Blvd.
Suite 1800
St. Louis, MO 63105
Google Maps
St. Louis, Missouri
Washington, D.C.
1717 Pennsylvania Avenue NW
Suite 400
Washington, DC 20006
Google Maps
Photo of Washington, D.C. with the Capitol in the foreground and Washington Monument in the background.
Wilmington, DE
1007 North Market Street
Wilmington, DE 19801
Google Maps
Wilmington, Delaware