By Seth B. Orkand and Sabrina M. Galli
The legal evolution of how secondary schools, colleges, and universities must address allegations of sexual harassment has led to significant changes over the last two decades. The U.S. Department of Education has provided guidance through a series of “Dear Colleague Letters,” and issued regulations effective in August 2020. The Biden administration is expected to issue revisions to these regulations in October 2023. In the meantime, aggrieved participants in Title IX proceedings continue to bring cases in federal court alleging that schools improperly handled claims of sexual misconduct. Approximately fourteen Title IX cases have been filed in the District of Massachusetts since the Boston Bar Journal’s last update on Title IX litigation in 2020, and the First Circuit has decided approximately seven such cases.
While Title IX guidance and regulations continue to fluctuate, the basis of Title IX legal claims remains the same: “[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity receiving [f]ederal financial assistance.” 20 U.S.C. § 1681(a). There are two theories a plaintiff may assert under Title IX: selective enforcement and erroneous outcome. Regardless of which theory a plaintiff pursues, both require a showing of gender bias.
To succeed with a “selective enforcement” claim under Title IX, a plaintiff must demonstrate that “the severity of the penalty and/or the decision to initiate the proceeding was affected by the student’s gender.” To succeed on an erroneous outcome claim, a plaintiff must show: “(1) particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2) “a causal connection between the flawed outcome and gender bias.” Regardless of which theory is pursued, plaintiffs must show specific evidence that “gender bias was a motivating factor in the disciplinary process.”
Adequately pleading and proving gender bias have been challenging hurdles that most plaintiffs in Massachusetts fail to overcome. Nevertheless, the remedies available to Title IX claimants in addition to compensatory damages, such as injunctive relief implementing school-wide changes, punitive damages, and attorneys’ fees, motivate claimants to continue pursuing Title IX claims. In the cases below, all of the plaintiffs sought redress from a school’s disciplinary action. By asserting Title IX claims, they sought to reverse those actions and expunge their records.
One Example of a Successful Title IX Claim
Farzinpour v. Berklee College of Music, 616 F. Supp. 3d 98 (D. Mass. 2022) is a rare exception to the string of recent District of Massachusetts cases denying Title IX claims. In this case, the plaintiff, a former college professor, claimed his university terminated him because of gender bias after a student claimed that he sexually harassed her. After the student made allegations and the investigation began, the school put the professor on paid administrative leave due to the severity of the allegations. Based on the totality of the circumstances, including that the student admitted to “feigning interest” in order to test the professor, the university allowed the professor to return after a 30-day suspension. After he repeatedly used class time to talk about the investigation, however, the university ultimately terminated him. The plaintiff sought an injunction enjoining enforcement of the suspension and his employment termination, and expungement of his disciplinary records. When analyzing the plaintiff’s Title IX claim, the Court held:
gender bias may be inferred when the following four factors are all met: the school made findings against the accused male that were incorrect and contrary to the weight of the evidence; failed to follow its procedures to protect the accused; failed to seek out potential witnesses; and faced criticism for not addressing female complaints against males.
Based on these factors, the Court found that the plaintiff had offered sufficient facts to survive a motion for summary judgment on the claim that the university acted based on gender bias as a motivating factor, particularly because the student admitted that she “tested” the plaintiff to determine his sexual intent and admitted that her actions “looked questionable.”*
Title IX Claims Are Frequently Dismissed, While Breach of Contract Claims Proceed
The plaintiff’s success in Farzinpour is notable because proving gender bias has been challenging for most litigants in recent Title IX cases in the First Circuit. Indeed, most recent Title IX claims in the First Circuit and District of Massachusetts have been dismissed for a failure to plead or prove gender bias. For example, in Doe v. Stonehill College, 55 F.4th 302 (1st Cir. 2022), the allegations of gender bias were deemed insufficient. The plaintiff brought Title IX, breach of contract, and other claims based on the school’s handling of a disciplinary proceeding that resulted in the plaintiff’s expulsion. The First Circuit affirmed the denial of the plaintiff’s Title IX claim, finding that “deference to [the complainant], without more, does not show that [the complainant’s] treatment — or [respondent’s] – is attributable to sex rather than to some other reason, such as Roe’s status as the complainant.” The Court discounted the plaintiff’s conclusory allegations, stating, “[b]eyond his unsupported allegation that Stonehill penalizes men for sexual misconduct more severely than women, Doe does not allege that Stonehill has treated sexual assault claims brought by men differently from such claims brought by women.” However, the First Circuit permitted the plaintiff’s breach of contract claim to proceed. Although the school’s policy promised students an opportunity to review any relevant facts obtained through the investigation before submitting the case to the decisionmaker, the plaintiff alleged that Stonehill included interview statements in the final investigatory report that it did not provide to the plaintiff with the draft report, denying him the opportunity to respond. Additionally, the Court found that the school breached its policy by not informing the plaintiff that it was re-interviewing one of the complainants, and the decisionmaker’s rubber-stamp of the investigator’s recommendations breached the school’s policy requiring the decisionmaker’s independent review of the case. In making its decision, the First Circuit relied upon Stonehill’s contractual promise to ensure “fair and thorough” investigation.
Similarly, in Doe v. Williams College, 530 F. Supp. 3d 92 (D. Mass. 2021), the District Court dismissed the plaintiff’s Title IX claim because his allegation that the college treated him less favorably in the disciplinary process than it would have treated a similarly situated female student was insufficient to demonstrate gender bias. The Court allowed the plaintiff to proceed with his complaint against the school based only on his claim that the school’s dean “improperly influenced the hearing panel’s decision” in violation of the contract created by the school’s code of conduct procedures. The court opined that “evidence that [a dean] improperly influenced the hearing panel’s decision raises questions about whether the College conducted a fair adjudication” and was enough to deny summary judgment.
Again, in Doe v. Harvard University, 462 F. Supp. 3d 51 (D. Mass. 2020), the plaintiff’s breach of contract claim, but not his Title IX claim, survived a motion to dismiss. There, the plaintiff sued the university after being disciplined for an alleged sexual assault. The Court found it persuasive that: (1) the university gave the complainant’s claim more weight than the plaintiff’s version of events despite the availability of evidence refuting her claims and despite inconsistencies in her accounts; (2) the investigator inquired into the complainant’s level of intoxication without making a similar level of inquiry into the plaintiff’s level of intoxication; (3) the investigator repeatedly ignored the plaintiff’s claims, statements, and requests for further investigation of available evidence; (4) the defendants failed to take seriously or follow up on the plaintiff’s allegations of witness bias; and (5) the final report included discussion of the impact of the incident on only the complainant, and not on the plaintiff. The Court, however, found that these facts did not implicate gender bias and dismissed the Title IX claim. These allegations supported a claim that “Harvard’s denial of an opportunity to meaningfully respond to information obtained during the disciplinary investigation process” constituted a breach of contract, where plaintiff alleged that he was given neither a follow-up interview before the investigation concluded, nor an opportunity to meaningfully respond to information obtained during the investigation – both provided for in the school’s policy.
Breach of Contract Is Not Always a Viable Alternative to a Title IX Claim
Although plaintiffs have recently been more successful in asserting contract claims than Title IX claims, even breach of contract claims in these circumstances can be difficult to prove. In Dismukes v. Brandeis University, Civil No. 19-11049-LTS, 2021 WL 1518828 (D. Mass. Apr. 16, 2021), the Court granted the school summary judgment on both categories of claims. The plaintiff’s claims arose from protective measures implemented against him based on allegations that he harassed and physically assaulted a female graduate student. On the Title IX claim, the court found no evidence of gender bias on the mere allegation that plaintiff is male, the accuser is female, and the individuals who conducted the informal investigation were women. Without more, such allegations were not enough to meet the gender bias standard. The Court noted that if plaintiff “had even a shred of evidence supporting an inference of gender bias, his claim of selective enforcement still would fail because he has identified no similarly situated comparator of another gender who was treated differently.” On the breach of contract claim, the District Court found that “the reasonable expectations of the parties” based on the policy in the student handbook were met and “the procedures followed [by Brandeis] were conducted with basic fairness.” The court found that Brandeis “implement[ed] [the] process as it is described” and implemented “protective measures expressly identified in the handbook’s description of the informal process.” The First Circuit upheld the District Court’s dismissal of the claims.
The Court also rejected Title IX and breach of contract claims in Doe v. Williams College, Civil No. 3:20-cv-30024D. Mass. Sept. 7, 2022). The Court rejected the plaintiff’s challenge to a disciplinary proceeding that resulted in a one semester suspension for sexual misconduct involving a fellow student, for lack of evidence of bias or that the college treated female students differently than males. The Court rejected the plaintiff’s argument that the school’s training materials “advanced a gender-biased view of male students as sexual predators” because they reference “hostile masculinity” and depicted a male as the assaulter, because he established no causal connection between the training materials and the decision against him. The District Court also found that the plaintiff’s breach of contract claim failed because the allegations did not establish that “the academic institution failed to meet the accused student’s reasonable expectations under the terms of the contract” and the college procedures were “conducted with basic fairness.”
Some Plaintiffs Forego Title IX Claims Altogether
In an apparent effort to streamline their complaints and avoid the challenges of pleading or proving Title IX claims, some plaintiffs have asserted only breach of contract claims in circumstances where others have sought relief under Title IX. In Sonoiki v. Harvard University, 37 F.4th 691 (1st Cir. 2022), the First Circuit revived the plaintiff’s breach of contract claim after the District Court’s dismissal. The First Circuit found five theories upon which the plaintiff’s allegations supported a breach of contract claim. The allegations were that: (1) Harvard improperly withheld the plaintiff’s diploma without a formal charge of sexual misconduct; (2) the plaintiff’s Board Representative failed to fulfill her duty of advocating on the plaintiff’s behalf; (3) the Board Representative breached her duty of confidentiality; (4) Harvard failed to provide the plaintiff with the names of the witnesses used against him; and (5) Harvard failed to include the Board Representative and/or plaintiff in meetings about the complaints. The case is back in the District Court and Harvard has once again moved for summary judgment (as of May 31, 2023) arguing that it followed all procedures.
Plaintiffs have struggled to gain traction with Title IX claims because of difficulties in proving gender bias beyond asserting conclusory allegations that female complainants’ allegations were credited over male respondents’ statements, that men are penalized for sexual misconduct more severely than women, or that schools have pro-complainant biases. Breach of contract claims often see higher chances of success, particularly when schools stray from their own procedures. Yet plaintiffs continue to assert Title IX claims in the hopes of obtaining attorneys’ fees and injunctive relief to reverse disciplinary actions. Despite the difficulty in pursuing Title IX claims, litigants are likely to continue to pursue the protections and remedies that Title IX provides.
As schools revise their Title IX policies in the wake of new Title IX regulations expected in October 2023, courts can be expected to require schools to follow their procedures, provide respondents the opportunity to appropriately review or respond to evidence, and avoid undue influence by staff who are not decisionmakers in the Title IX processes.
*Correction: an earlier version of this article implied that the decision had found certain facts; the sentence has been clarified to indicate that the decision found that the plaintiff had offered sufficient facts to survive summary judgment.
Seth B. Orkand is a partner at Robinson + Cole LLP and co-chair of the firm’s Government Enforcement and Internal Investigations team. He is a certified Title IX investigator and regularly advises students, faculty, and staff in Title IX proceedings.
Sabrina M. Galli is an attorney in the Business Litigation practice group of Robinson + Cole LLP and is a member of the firm’s Education Law Industry team. Her experience as a former high school teacher serves as the foundation for her service of education clients.
 See Doe v. Stonehill Coll., Inc., No. 20-cv-10468-LTS, 2021 WL 706228, at *6-7 (D. Mass. Feb. 23, 2021) (noting both types of Title IX claims require evidence that the decision to investigate and/or the outcome were motivated by plaintiff’s gender).
 Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 74 (1st Cir. 2019) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)).
 Yusuf, 35 F.3d at 715.
 Haidak, 933 F.3d at 74 (quoting Trs. of Bos. Coll., 892 F.3d 67, 90 (1st Cir. 2018)).
 Farzinpour, 616 F. Supp. 3d at 111 (quoting Vengalattore v. Cornell Univ. 36 F.4th 87, 106 (2d Cir. 2022)).
 Id. at 112.
 Doe, 55 F.4th at 62.
 Doe, 530 F. Supp. 3d 92
 Id. at 122. See also Doe v. Brandeis Univ., No. 20-CV-12162-AK, 2023 WL 1822785 (D. Mass. Feb. 8, 2023) (finding that the Director of the Office of Equal Opportunity’s alleged influence in the adjudication process was sufficient to support a breach of contract claim, but dismissing the Title IX claim as insufficient because there was no “connection between the outcome of his disciplinary proceedings and gender bias”).
 Doe, 462 F. Supp. 3d at 60-61. The Court allowed plaintiff to proceed on his § 1981 claim of racial bias, where he alleged that the denial of the informal resolution requested by himself and Jane Roe was pretextual and racially motivated. Plaintiff made allegations that white students have been permitted to resolve complaints of sexual misconduct informally and that his request was handled differently than the requests by white students. By providing a comparator group and allegations that that group was treated differently, Plaintiff’s allegations were sufficient to proceed.
 Id. at 65.
 Dismukes, 2021 WL 1518828 at *8.
 Id. at *10.
 Id. at *13.
 Doe, at *46-47.
 Id. at *3, 44. See id. at *33 (for example, the Court found plaintiff’s allegation that the college failed to interview an identified witness insufficient because the witness failed to appear for an interview despite repeated attempts by the investigator).
 Sonoiki, 37 F.4th at 704–07, 710–13.
 See id. at 704–07, 710–13.