15-1536 (L) John Doe v. Columbia University

1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 2015 4 5 (Argued: April 12, 2016 Decided: July 29, 2016) 6 7 Docket Nos. 15-1536 (Lead), 15-1661 (XAP) 8

------------------------ ------------------- ----------------X 9 JOHN DOE 10 Plaintiff-Appellant

- Cross-Appellee , 11 v. 12 COLUMBIA UNIVERSITY, THE TRUS TEES OF COLUMBIA UNIVERSITY 13 Defendants-Appellees-Cross-Appellants

. 14

------------------------ ------------------- ----------------X 15 16 Before: LEVAL, DRONEY , Circuit Judges; KOELTL, District Judge. 1 17 18 Plaintiff John Doe appeals from a judgment of the United States District 19 Court for the Southern District of New York (Furman, J. ), which granted 20 Defendant Columbia University’s motion to dismiss Plaintiff’s complaint for 21 failure to state a sufficient claim. The complaint allege d that Defendant violated 22 Title IX of the Education Amendments of 1972 and state law by practicing sex bias 23 in disciplining him for an alleged sexua l assault. The complaint meets the low 24 burden of alleging facts supporting a mini mal plausible inference of bias. We 25 therefore vacate the judgment and remand. 26 27 VACATED and REMANDED. 28 29

1 The Honorable John G. Koeltl of the United States District Court for the Southern District of New York, sitting by designation.15-1536 (L) John Doe v. Columbia University

2 PHILIP A. BYLER, NESENOFF & 1 MILTENBERG, LLP, New York, NY, 2 (Andrew T. Miltenberg, on the brief ), for 3 Plaintiff-Appellant-Cross-Appellee. 4 5 PAUL R.Q. WOLFSON, WILMER 6 CUTLER PICKERING HALE AND DORR 7 LLP, Washington, DC, (Bruce M. Berman, 8 Saurabh Sanghvi, Alan E. Schoenfeld, on 9 the brief ), for Defendants-Appellees-Cross10 Appellants. 11 12 Leval, Circuit Judge : 13 14 Plaintiff, a Columbia University stude nt who is identified by the pseudonym 15 John Doe, appeals from the judgment of th e United States District Court for the 16 Southern District of New York (Furman, J. ), dismissing his amended complaint 17 (“the Complaint”) under Fed. R. Civ. P. 12(b)(6) "for failure to state a claim on 18 which relief can be granted." The Compla int alleges that De fendant Columbia 19 University 2 violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 20
1681 et seq. (“Title IX”), and state law, by acti ng with sex bias in investigating 21 him and suspending him for an alleged sexual assault. We conclude that the 22 Complaint meets the low standard described in Littlejohn v. City of New York , 795 23

2 Although the Trustees of Columbia Universi ty are also Defendants in this action, we generally use “Defendant” hereinafter to refer to Columbia University.15-1536 (L) John Doe v. Columbia University

3 F.3d 297 (2d Cir. 2015), of alleging facts giving rise to a plausible minimal 1
inference of bias sufficient to survive a motion to dismiss, which we hold applies 2
in Title IX cases. We therefore VACATE the judgment and REMAND. 3
I. Factual Background 4 On a motion under Rule 12(b)(6) to dismi ss a complaint for failure to state a 5 claim, the only facts to be considered ar e those alleged in the complaint, and the 6 court must accept them, drawing all reason able inferences in the plaintiff’s favor, 7 in deciding whether the complaint a lleges sufficient facts to survive. See DiFolco 8 v. MSNBC Cable L.L.C. , 622 F.3d 104, 110-11 (2d Cir. 2010). Furthermore, the 9 plaintiff is at liberty to plead different th eories, even if they are inconsistent with 10 one another, and the court mu st accept each sufficiently pleaded theory at face 11 value, without regard to its inconsiste ncy with other parts of the complaint. See 12 Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims . . . as it has, 13 regardless of consistency.”); Gregory v. Daly , 243 F.3d 687, 701 n.12 (2d Cir. 14 2001). Needless to say, the facts a plaintiff alleges in the complaint may turn out to 15 be self-serving and untrue. But a court at this stage of our proceeding is not 16 engaged in an effort to determine the true facts. The issue is simply whether the 17 facts the plaintiff alleges, if true, are plau sibly sufficient to state a legal claim. For 18 that reason, the court, in judging the suffi ciency of the compla int, must accept the 1915-1536 (L) John Doe v. Columbia University

4 facts alleged and construe ambiguities in th e light most favorable to upholding the 1 plaintiff’s claim. If the compla int is found to be sufficient to state a legal claim, the 2 opposing party will then have ample opportu nity to contest the truth of the 3 plaintiff’s allegations and to offer its own version. In light of those rules, we set 4 forth below facts alleged in Plaintiff's Comp laint in the light most favorable to him, 5 drawing reasonable inferences in his favor. 6

a. The Sexual Encounter between Plaintiff and Jane Doe 7 On the night of May 12, 2013, Plain tiff, a male Columbia freshman who 8 upon completing his freshman year became a varsity athlete, was studying for a 9 final exam in his residence hall. At a pproximately 1:00 a.m. a female classmate 10
and member of the same circle of fri ends, identified in this litigation by the 11 pseudonym Jane Doe, approached him a nd initiated a conversation. They took an 12 hour-long walk together, and eventually began discussing the topic of “hooking 13 up.” The Complaint alleges th at, in the interest of pr ivacy for a sexual encounter, 14 Jane suggested using the bathroom of he r dormitory’s suite. She insisted on using 15
her suite rather than his because her ex -boyfriend was Plaintiff’s roommate. She 16 told Plaintiff to wait in the bathroom whil e she went to her bedroom to retrieve a 17 condom. She then undressed herself in the bathroom, and they proceeded to have 1815-1536 (L) John Doe v. Columbia University

5 sex. Over the next two weeks, Jane c ontacted Plaintiff twice to express doubts 1 about how their frie nds would react. 2
b. Jane Doe’s Complaint and Defendant’s Investigation 3 After the start of the next school year , on September 24, 2013, Rosalie Siler, 4
Defendant’s Assistant Director fo r Gender-Based and Sexual Misconduct, 5
contacted Plaintiff to inform him that a fellow student had made allegations of 6 sexual assault against him, and advised him to come in for a meeting. The next 7 day, Plaintiff met with Siler, who gave him a formal written notice that he was 8 charged with “Non-Consensual Sexual Inte rcourse” in violation of the school’s 9 Gender-Based Misconduct Policies for St udents (“GBMPS”), which established 10 procedures for responding to allegations of sexual assault on campus. He was told 11 that, as a consequence of Ja ne Doe’s accusation, the Univ ersity had issued an order 12 barring him from contact with her and rest ricting his access to residence halls on 13 campus. Although Plaintiff was advised that he was entitled to access the on14 campus Counseling & Psychological Services , he was not advised of other sources 15 of support during the disciplinary process. 16 Plaintiff was summoned to meet on September 25, 2013, with the Columbia 17 Title IX investigator, Jilleian Sessions-St ackhouse, who Plainti ff alleges, referring 18 to her prior experience, was not gender neutral. In her role as Title IX investigator, 1915-1536 (L) John Doe v. Columbia University

6 Sessions-Stackhouse was “charged with cr eating the narrative account that is 1 eventually adopted by the [disciplinary] panel.” A 90. Plaintiff told Sessions2 Stackhouse that the encounter had been consensual and that there had been 3 witnesses at the residence hall lounge that night who could be helpful. The 4 Complaint alleges that Sessions-Stackhous e’s response was hostile. She did not ask 5 him about the witnesses, interview them , or follow up with them in any way. 3 6 According to Plaintiff, “[a]t all times , [he] was under the impression that Ms. 7 Sessions-Stackhouse would investigate and follow up on [his] account of the 8 evening once he conveyed his side of the story; [but] as it turns out, that never 9 happened.” A 89. 10 According to the Complaint, Sessions-Stackhouse’s questioning of Plaintiff 11 was akin to cross-examination calculated to elicit a confession. She failed to tell 12 him he could submit his own written statement to her or to the disciplinary panel, 13 and failed also to advise hi m that he was entitled to seek the support of a student 14 advocate. Nor did she advise him of resour ces available to him to aid him in the 15
process. 16

3 The Complaint later acknowledged that Sess ions-Stackhouse interv iewed at least one witness identified by Doe.15-1536 (L) John Doe v. Columbia University

7 Plaintiff alleges in contrast, upon info rmation and belief, that, in meeting 1 with Jane Doe, Sessions-Stackhouse to ok a narrative account without leading 2 questions and without hostility, giving Jane thorough advice as to the resources 3 available to her. The interviews c onducted by Sessions-Stackhouse were not 4 recorded. She took handwritten notes. 5 On October 21, 2013, Plaintiff reported to Siler that Jane Doe’s friends had 6 harassed and assaulted him on campus. Siler “did not take [his] complaint . . . 7 seriously.” A 91-92. 8 On October 22, 2013, Plaintiff met w ith Sessions-Stackhouse to review her 9 notes from their previous meeting. He “ observed that [her] notes inaccurately and 10 inadequately paraphrased [Plaintiff’s] ve rbal account of the events.” A 92. On 11 January 25, 2014, Plaintiff met with Inte rim Assistant Director, Deputy Title IX 12 Coordinator Virginia Ryan (Siler’s repl acement) to review Sessions-Stackhouse’s 13 report. 14 According to the Complaint, the report falsely depicted Plaintiff as having 15 inflicted nonconsensual sex on Jane Doe, by virtue of having coercively pressured 16 her over a period of weeks to have sex with him. 4 The report showed that Sessions- 17

4 While the Complaint does not explicitly al lege what Sessions-Stackhouse wrote in her15-1536 (L) John Doe v. Columbia University

8 Stackhouse had disregarded Plaintiff’s acc ount of Jane Doe’s clearly expressed 1 consent, and failed to r econcile Jane’s account w ith conflicting information 2 provided to Sessions-Stackhouse by India Knight, who was a friend of Jane’s, 3 about Jane’s motivation on May 12. The re port also allegedly failed to include 4 statements of persons, including Jane’s roommate, “who had occasion to witness 5 Jane Doe in the weeks befo re” the encounter as well as on that night. A 104-05, 95. 6 Plaintiff attempted to correct Sessions-St ackhouse’s mistakes. Ryan gave Plaintiff 7 a form to state his response, which he co mpleted and returned on January 29, 2014. 8 Soon thereafter, Ryan provided Plaintiff with a hearing date of February 12 9 and gave him a list of the panelists. According to Plaintiff, at no point during the 10 investigative process did Sessions-Stackhous e, or any administrator, advise him 11 that he was entitled to seek advice a nd counsel from his Dean of Students. 12

c. Criticisms of Columbia Among Students and in the Press for 13 its Previous Lenient Handling of Sexual Assault Complaints 14 15 In the period preceding Plaintiff’s disc iplinary hearing, Columbia students 16 had expressed concern that the University did not take seriously the complaints of 17
female students about sexual assaults by male students. Various student 18

report, it can be fairly inferred that the report took the position that Plaintiff coerced Jane into sex by weeks of pressure, and that he r participation was deemed to be without consent by reason of the prior pressure.15-1536 (L) John Doe v. Columbia University

9 organizations had “alleged that the sc hool [was] not being firm enough in the 1 disciplinary process” in cases involving accusations by female students of sexual 2 misconduct by male students. A 97. This controversy reache d the press. On 3 December 11, 2013, a New York Post ar ticle declared, “Columbia drops ball on 4 jock ‘rapist’ probe: students.” Id. The article quoted se veral female students 5 asserting that Columbia had mishandled their sexual assault complaints, failing to 6 act with expediency in investigating, giving lenient sanctions, and conveying an 7 overall tenor of “dismi ssal” with regard to the seri ous nature of the complaints. 8
The article stated that th e University’s Presidential Advisory Committee on Sexual 9 Assault intended to schedul e a meeting with the Colu mbia University Student 10 Democrats to learn more directly about st udent concerns and explore possible next 11 steps. 12 On campus, the Columbia University Democrats had criticized the 13 University’s handling of sexual assault co mplaints and called for reforms. Sarah 14 Weinstein, the Membership Director of that student organization, had written 15 opinion articles calling for increased transparency at the school, and had 16 spearheaded a petition to request statistic s on sanctions issued by Defendant in 17 sexual assault cases. Referring to reports that Yale University had given light 18 punishments to male students found to have raped or assaulte d female students, 1915-1536 (L) John Doe v. Columbia University

10 Weinstein was quoted in articles as saying, “[W]e want to make sure that what’s 1 happening at Yale isn’t happeni ng here at Columbia.” A 98. 2 On January 23, 2014, an independent , student-run newspaper criticized 3 Columbia’s handling of sexual assault co mplaints, discussing the experiences of 4 three alleged sexual assault vi ctims “in an effort to highlight how the university’s 5 internal investigation allo wed [an] accused student at hlete to escape punishment.” 6 The articles particularly criticized Sessions-Stackhouse for “inadequate 7 investigation[s].” A 99. In February 2014 (c lose to the time of Plaintiff’s hearing) 8 Columbia University President Lee Bo llinger promised to hold a Town Hall 9 meeting on the school’s handling of sexu al misconduct. Columbia Dean James 10 Valentini was scheduled to attend the meeting. 11 On April 24, 2014, twenty-three student s filed complaints with the United 12 States Department of Education for violat ions of Title IX a nd other laws, alleging 13
that Defendant mishandled incidents of sexual assault and misconduct on campus. 14
d. Columbia’s Policies for Addressing Sexual Assault 15 Columbia’s policy on gender-based mi sconduct (the GBMPS) provided that 16 a student accused of sexual assault woul d be given notice of the complaint and 17 written notice of the allegations, as well as an opportunity to meet with the 18 Assistant Director for Student Servi ces for Gender-Based and Sexual Misconduct 1915-1536 (L) John Doe v. Columbia University

11 to review the GBMPS policy and proced ures. A specially trained Title IX 1 investigator (Sessions-Stackhouse) woul d then interview “the complainant, 2 respondent, and any witne sses,” “gather any pertinent documentation,” and 3 “prepare a report detailing th e relevant [findings].” A 178. If the investigator found 4 “reasonable suspicion,” then the respondent and complainant would “each have the 5 opportunity to review the investigative report and . . . documentation.” A 179. If 6 the respondent denied responsibility or di d not respond, a hearing panel would be 7 convened. 8 Hearings were to be closed pro ceedings. The hearing panels, when 9 practicable, would consist of two deans and/ or senior-level administrators and one 10 student drawn from a specially trained pool . A party could challenge a panelist’s 11 participation in writing. During the hear ing, only the panel would call and question 12 parties and witnesses, but parties could submit questi ons, which the panel would 13 have discretion to decline to ask if it foun d them irrelevant or duplicative. Panels 14 were to base their decisions on a “preponde rance of [the] evidence” standard of 15 proof. A 181. Decisions were to be made within five business days, and the Dean 16 of Students would render a decision five business days later. Sanctions could range 17 from a warning to suspension to full dismissal. Respondents had the right to an 18 appeal. 1915-1536 (L) John Doe v. Columbia University

12 e. The Disciplinary Hearing and Plaintiff’s Suspension 1 Plaintiff’s disciplinary hearing took pl ace on February 12, 2014, before three 2 panelists—the Director of the Office of Di sability Services at Barnard College, the 3
Associate Director for Residential Life and Housing at Barnard College, and a 4 graduate student at the Columbia School of Public Health. Ryan and her assistant 5 were also present. Plaintiff brought hi s roommate. Jane Do e was accompanied by 6 Weinstein, who had been among the most vocal critics of the University’s prior 7 handling of rape complaints. Weinstein was not Jane’s friend, and had no prior 8 relationship with her. Columbia’s rules did not allow the accused student legal 9 representation. 10 There were three rooms set up for the hearing—one for the panelists, one for 11 Plaintiff, and one for Jane Doe. In each room, a television was set up with a live 12 video feed of the hearing so that each participant had the oppo rtunity to watch at 13
all times. 14 At the start of the hearing, the panelists asked Plaintiff to make a statement. 15 Because Sessions-Stackhouse allegedly had not told Plaintiff he would be called on 16 to make a statement, he had nothing prepared and merely stated that he “did 17 nothing wrong.” A 101-02. 1815-1536 (L) John Doe v. Columbia University

13 At the hearing, the panel considered Sessions-Stackhouse’s report, which did 1 not include reference to witnesses who c ould have supported Plaintiff’s defense, 2 allegedly because Sessions-S tackhouse had declined to follow the leads Plaintiff 3 had given her. The panel did not ca ll witnesses who could have supported 4 Plaintiff’s defense. Plaintiff submitted ques tions to the panelists to be put to Jane 5 Doe, but they did not allow him to exhaust his list, asserting that the questions 6 were “irrelevant.” A 103. 7 The hearing lasted less than two hours. The panelists found Plaintiff 8 “Responsible” for the charge of “s exual assault: non-consensual sexual 9 intercourse.” A 104. Although Plaintiff denied having coerced Jane Doe and 10 alleged that no evidence was presented in support of such coercion, the panel 11
found that Plaintiff had “directed unreason able pressure for sexual activity toward 12 the Complainant over a period of weeks” and that “this pressure constituted 13 coercion [so that] the sexual interc ourse was without consent.” A 104. 14 On February 26, 2014, Plaintiff was in formed that Columbia was issuing an 15 order of suspension until Fall 2015. Becau se the University refused to give 16 Plaintiff credit for his Spring 2014 classes, the suspension was functionally 17 equivalent to one and one half years. Plai ntiff stated that on the same day, he saw 1815-1536 (L) John Doe v. Columbia University

14 Jane Doe, who called out to him that she was “sorry” and that she was going to get 1 his punishment lessened. A 105. 2 Plaintiff was advised of his right to appeal within five business days. On 3 March 3, 2014, Plaintiff appealed, citing, among other things, Sessions4 Stackhouse’s failure to interv iew key student witnesses. Jane Doe also submitted 5 an appeal to reduce the sever ity of Plaintiff’s punishment. 6 On March 10, 2014, Dean Valentini denied Plaintiff’s appeal, explaining in 7 part that Sessions-Stackhouse’s failure to interview “key witnesses” identified by 8 Plaintiff was within her discretion, that su ch witnesses were “not raised with Ms. 9 Sessions-Stackhouse and were ‘raised for th e first time on appeal,’” and that 10 Plaintiff’s coercive behavior “was committed outside the purview of other 11 witnesses, and, thus, such witnesses’ testimonies we re insufficient.” A 107. The 12 Dean concluded that the sanction was a ppropriate because sexual assault is an 13 egregious offense. Dean Valentini’s denial of Plaintiff’s appeal occurred four days 14 prior to the University-wide meeting fo r discussion of the school’s handling of 15 such complaints, which the Dean was scheduled to attend. 16 f. Proceedings Below 17 Plaintiff filed his suit on June 9, 2014, alleging that Columbia subjected him 18 to sex discrimination in violation of T itle IX and state law. The Complaint seeks 1915-1536 (L) John Doe v. Columbia University

15 both damages and expungement of his discip linary record. It alleges that Sessions1 Stackhouse, in the role of the University’s supposedly neutral Title IX investigator, 2 was motivated by pro-female se x bias, attributable in part to a desire to refute 3 criticisms of herself and of the Univers ity for their past handling of similar 4 complaints, to perform her duties in a manner that discriminated against the 5 accused male. The Complaint alleges that she conducted a sex-biased and deficient 6 investigation that was hostile to his claim, failed to carry out her duty to interview 7 his witnesses and explore channels that coul d be helpful to him, failed to advise 8 him of his rights, and drew unfair and in correct conclusions against him in her 9 report to the adjudicatory panel. The Compla int alleges also that the University’s 10 decision-makers (the panel and the Dean), seeking to protect the University from 11 criticism both among students and the public to the effect that it was not taking 12 women’s sexual assault complaints seriousl y, took a pro-female, sex-biased stance 13 on Jane Doe’s allegations, leading them to decide against him, incorrectly and 14 contrary to the weight of the evidence. 15 The district court granted Columbia’s motion to dismiss the federal law 16 claims. The court also “declin[ed] to exercise supplemental jurisdiction” over 17 Plaintiff’s state-law clai ms. A 223. Plaintiff then brought this appeal. 18

1915-1536 (L) John Doe v. Columbia University

16 DISCUSSION 1 2 I. Title IX 3 Title IX’s relevant portio n provides, “No person in the United States shall, 4 on the basis of sex , be excluded from participation in, be denied the benefits of, or 5 be subjected to discrimination under any education progra m or activity receiving 6 Federal financial assistance.” 20 U.S .C. § 1681(a) (emphases added). This 7 provision, which is enforceable through an implied private right of action, was 8 enacted to supplement the Civil Rights Act of 1964’s bans on racial discrimination 9 in the workplace and in universities. Yusuf v. Vassar Coll. , 35 F.3d 709, 714 (2d 10 Cir. 1994). Because Title IX prohibits (under covered circumstances) subjecting a 11 person to discrimination on account of sex, it is understood to “bar[] the imposition 12 of university discipline where gender is a motivating factor in the decision to 13 discipline.” Id. at 715. 14 II. Standard of Review 15 A court of appeals reviews de novo a district court’s grant of a motion under 16 Rule 12(b)(6) to dismiss a complaint for "failure to state a claim upon which relief 17 can be granted." Littlejohn , 795 F.3d at 306. 18

1915-1536 (L) John Doe v. Columbia University

17 a. Standard for Judging the Sufficiency of a Complaint Alleging 1 Discrimination under Title IX 2 3 In a series of cases beginning with McDonnell Douglas Corp. v. Green , 411 4 U.S. 792 (1973), 5 the Supreme Court ruled that, in suits alleging employment 5 discrimination in violation of Title V II of the Civil Rights Act of 1964 (“Title 6 VII”), as amended, 42 U.S.C. § 2000e et seq. , and related statutes, until the 7 defendant furnishes a nondiscriminatory reason for the adverse action it took 8 against the plaintiff, the plaintiff n eeds to present only minimal evidence 9 supporting an inference of disc rimination in order to prevail. See McDonnell 10 Douglas , 411 U.S. at 802. 11 As set forth in our recent explanation of McDonnell Douglas ’s standard, 12 [I]n the initial phase of the case, the plaintiff can establish a prima 13 facie case without evidence sufficient to show discriminatory 14 motivation . . . . If the plaintiff can s how (1) that she is a member of a 15 protected class; (2) that she was qualified for employment in the 16 position; (3) that she suffered an a dverse employment action; and, in 17 addition, has (4) some minimal evid ence suggesting an inference that 18 the employer acted with discriminatory motivation,[ 6 ] such a showing 19

5 See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248 (1981).

6 The “minimal evidence suggesting an in ference that the employer acted with discriminatory motivation” can be satisfied by as little as a show ing that the position sought by the plaintiff remained open after pl aintiff’s rejection a nd that the employer15-1536 (L) John Doe v. Columbia University

18 will raise a temporary “presumption” of discriminatory motivation, 1 shifting the burden of production to the employer and requiring the 2 employer to come forward with its justification for the adverse 3 employment action against the plain tiff. However, once the employer 4 presents evidence of its justifica tion for the adverse action, joining 5 issue on plaintiff's claim of di scriminatory motivation, the 6 presumption “drops out of the picture” and the McDonnell Douglas 7 framework “is no longer re levant.” At this point , in the second phase 8 of the case, the plaintiff must de monstrate that the proffered reason 9 was not the true reason (or in any event not the sole reason) for the 10 employment decision, which merges with the plaintiff’s ultimate 11 burden of showing that the defenda nt intentionally discriminated 12 against her. 13 14 Littlejohn , 795 F.3d at 307-08 (inter nal citations omitted). 15 16 With respect to the sufficiency of federal complain ts generally, the 17 Supreme Court ruled in Ashcroft v. Iqbal , 556 U.S. 662, (2009), 7 that a 18 complaint must plead specific facts sufficient to support a plausible 19
inference that the defendant is liable for the misconduct alleged. Id. at 678. 20 While “[t]he plausibility st andard is not akin to a ‘probability requirement,’ . 21 . . it asks for more than a sheer po ssibility that a defendant has acted 22 unlawfully.” Id. 23

continued to seek applicants from persons of plaintiff’s qualifications. See McDonnell Douglas , 411 U.S. at 802.

7 See also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-56 (2007).15-1536 (L) John Doe v. Columbia University

19 In Littlejohn , we clarified that Iqbal applies to employment1 discrimination complaints brought under Title VII. “To the same extent that 2
the McDonnell Douglas temporary presumption redu ces the facts a plaintiff 3 would need to show to defeat a motion for su mmary judgment prior to the 4 defendant’s furnishing of a non-discriminatory motivation, that presumption 5
also reduces the facts needed to be pleaded under Iqbal .” Littlejohn , 795 6 F.3d at 310. Because “[t]he discrimina tion complaint, by definition, occurs 7 in the first stage of the litigation . . . the complaint also benefits from the 8 temporary presumption and must be viewed in light of the plaintiff’s 9 minimal burden to show discriminatory intent.” Id. at 311. 10 In other words, at the 12(b)(6) stage of a Title VII suit, allegation of facts 11 supporting a minimal plausible inference of discriminatory intent suffices as to this 12
element of the claim becau se this entitles the plaintiff to the temporary 13 presumption of McDonnell Douglas until the defendant furnishes its asserted 14 reasons for its action against the plaintiff. 8 15

8 For this reason, we have often vacated 12(b )(6) and 12(c) dismissals of complaints alleging discrimination. See Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 84 (2d Cir. 2015) (vacating 12(c) dismissal of Title VII claim because the district c ourt held Plaintiff to overly stringent pleading standards); Dawson v. N.Y.C. Transit Auth. , 624 F. App’x 763, 770 (2d Cir. 2015) (summary order) (vacating 12(b)(6 ) dismissal of Plaintiff’s complaint); Azkour v. Bowery Residents’ Comm., Inc. , 2016 WL 1552367, *2 (2d Cir. 2016) (summary order); Osby v.15-1536 (L) John Doe v. Columbia University

20 A further question we now face is whether the burden-shifting framework 1 established by the McDonnell Douglas line of cases for claims of discrimination on 2 account of race, religion, or national origin under Title VII, and the associated 3 pleading burden we articulated in Littlejohn , apply also to Title IX claims alleging 4
discrimination on account of sex in educa tion programs or activities that receive 5 federal support. These claims have so much in common that, at least on certain 6 sorts of facts, rules the Supreme Court es tablished for Title VII litigation appear to 7 apply also to such similar claims of sex discriminati on under Title IX. See Yusuf , 8 35 F.3d at 714 (“[C]ourts have interpreted Title IX by looking to . . . the caselaw 9 interpreting Title VII.”). In several pr ior cases, we have applied Title VII’s 10 framework and principles to Title IX claims. See Weinstock v. Columbia Univ. , 11 224 F.3d 33, 42 n.1 (2d Cir. 2000) (explaining that the Title VII framework applies 12 to employment discrimination cl aims brought under Title IX); Murray v. N.Y. 13 Univ. Coll. of Dentistry , 57 F.3d 243, 248-49 (2d Cir. 1995) (stating that Title VII 14 standards should be applied in determining a university’s liability for a student’s 15 claim of sexual harassment under Title IX); see also Papelino v. Albany Coll. of 16

City of New York, 633 F. App’x 12, 13 (2d Cir. 2016) (s ummary order). We have also cautioned district courts against imposing too high a burde n on plaintiffs alleging discrimination at the 12(b)(6) stage. See Dawson , 624 F. App’x at 770 (“At the plead ing stage, district courts would do well to remember this exceedingly low burden th at discrimination plaintiffs face . . . .”).15-1536 (L) John Doe v. Columbia University

21 Pharmacy of Union Univ. , 633 F.3d 81, 89 (2d Cir. 2011) (stating that “[i]n 1 [certain] respects, a Title IX sex discrimination claim requires the same kind of 2 proof required in a Title VII sex discri mination claim,” and applying Title VII 3 standards to two sexual harassment claims). 4 While we did not explicitly state in Yusuf that we were incorporating 5 McDonnell Douglas ’s burden-shifting framework into Title IX jurisprudence, we 6 did state, after discussing the plaintiff’s allegations, that “[s] imilar allegations, if 7 based on race in employment decisions, w ould more than suffice in a Title VII 8 case, and we believe they easily me et the requirements of Title IX.” Yusuf , 35 F.3d 9 at 716. We also adopted Title VII’s require ment of proof of discriminatory intent, 10 and stated that “[a]llegations of a caus al connection in the case of university 11 disciplinary cases can be of the kind that are found in the familiar setting of Title 12
VII cases.” Id. at 714-15. Yusuf made clear that Title V II cases provide the proper 13 framework for analyzing Title IX discrimination claims. 9 We therefore hold that 14

9 Our court has extended the McDonnell Douglas burden-shifting framework to several other statutory schemes. See, e.g. , Gant ex rel. Gant v. Wallingford Bd. of Educ. , 195 F.3d 134, 146 (2d Cir. 1999) (applying the framework to racial discrimination claims brought under 42 U.S.C. §§ 1981 and 1983); Leibowitz v. Cornell Univ. , 584 F.3d 487, 498 & n.2 (2d Cir. 2009) (applying the framework to the Age Discrimina tion in Employment Act of 1967 (ADEA), with the distinction that an ADEA plai ntiff must demonstrate that age was a but-for, and not merely a motivating, factor), superseded by statute on other grounds ; Boykin v. KeyCorp , 521 F.3d 202, 213 (2d Cir. 2008) (applying the framework to Fa ir Housing Act disparate treatment claims).15-1536 (L) John Doe v. Columbia University

22 the temporary presumption afforded to plaintiffs in employment discrimination 1 cases under Title VII applies to sex discrimination plaintiffs under Title IX as well. 2 Thus, a complaint under Title IX, alleging that the pl aintiff was subjected to 3
discrimination on account of sex in the imposition of university discipline, is 4 sufficient with respect to the element of discriminatory intent, like a complaint 5 under Title VII, if it pleads specific facts th at support a minimal plausible inference 6 of such discrimination. Because Littlejohn was not decided until after the district 7 court made its decision in this case, and it had not yet been decided that the Title 8
VII McDonnell-Douglas framework applies to Title IX complaints, the district 9 court might not have anticipated that McDonnell-Douglas ’s temporary 10 presumption in a plaintiff’s favor reduces the plaintiff’s pleading burden, so that 11 the alleged facts need support on ly a minimal inference of bias. 12 b. Plaintiff’s Title IX Claims 13 Plaintiff’s Complaint pleads sufficient specific facts giving at least the 14 necessary minimal support to a plausible in ference of sex discrimination to survive 15 a Rule 12(b)(6) motion to dismiss, if T itle IX’s other requirements are met. It 16 alleges that Columbia’s hearing panel (which erroneously imposed discipline on 17 the Plaintiff), its Dean (who rejected his a ppeal), and its Title IX investigator (who 18 influenced the panel and the Dean by he r report and recommend ation), were all 1915-1536 (L) John Doe v. Columbia University

23 motivated in those actions by pro-female , anti-male bias. Those alleged biased 1 attitudes were, at least in part , adopted to refute criticisms circulating in the student 2 body and in the public press that Columbia was turning a blind eye to female 3 students’ charges of sexual assaults by male students. 4 Among the Complaint’s allegations th at support the inference of sex 5 discrimination are the following. Both the investigator and the panel declined to 6 seek out potential witnesses Plaintiff had identified as sources of information 7 favorable to him. 10 The investigator and the panel failed to act in accordance with 8 University procedures designed to protect accused students. The investigator, the 9 panel, and the reviewing Dean, furthermore, reache d conclusions that were 10 incorrect and contrary to th e weight of the evidence. 11 When the evidence substantially favor s one party’s version of a disputed 12 matter, but an evaluator forms a conclusion in favor of the other side (without an 13

10 Columbia’s proffered explanation that t hose witnesses were not sought out because they had no relevance to whether Plaintiff had coerced Jane Doe by unreasonable pressure during the preceding weeks does not justif y the dismissal of the Complaint. This is so for two reasons. First, while a factfinder might ultimately determin e that this was the true reason for not seeking out and interviewing these witnesses, it is also pl ausible that the failure to seek them out was attributable to discrimination, as the Complaint alleges. It is no t the court’s function in ruling on a motion to dismiss for insufficiency of the complaint to decide which was the defendant’s true motivation. Second, it is not correct that the potential witnesses suggested by Plaintiff related exclusively to the events of th e night of the sexual encounter a nd not to the preceding weeks. At least one was allegedly identified as a friend and potential confidan te of Jane Doe’s and not as a person who observed the interaction between John and Jane on the night of the encounter.15-1536 (L) John Doe v. Columbia University

24 apparent reason based in the evidence), it is plausible to infer (although by no 1 means necessarily correct) that the ev aluator has been influenced by bias. Here, the 2 facts pleaded in the Complaint (which we must accept in the light most favorable 3 to Plaintiff) support John Doe’s version (not surprisingly as they represent his 4 contentions). The Complaint’s narrative depi cts Jane Doe as an altogether willing 5 participant. It denies that Plaintiff coer ced Jane and asserts that “no evidence was 6 presented” in support of the claim of coercion. A 114. The alleged fact that 7 Sessions-Stackhouse, and the panel and the Dean, chose to accept an unsupported 8 accusatory version over Plaintiff’s, and d eclined even to explore the testimony of 9 Plaintiff’s witnesses, if true, gives plau sible support to the proposition that they 10 were motivated by bias in discharging thei r responsibilities to fairly investigate and 11 adjudicate the dispute. 12 While those allegations support the infe rence of bias, they do not necessarily 13
relate to bias on account of sex. Additi onal allegations of the Complaint, however, 14 give ample plausible support to a bias wi th respect to sex. As outlined above, the 15 Complaint alleges that during the period preceding the disciplinary hearing, there 16 was substantial criticism of the Univers ity, both in the student body and in the 17 public media, accusing the Univ ersity of not taking serious ly complaints of female 18 students alleging sexual assa ult by male students. It alleges further that the 1915-1536 (L) John Doe v. Columbia University

25 University’s administration was cognizant of, and sensitive to, these criticisms, to 1 the point that the President called a Univer sity-wide open meeting with the Dean to 2 discuss the issue. Against this factual bac kground, it is entirely plausible that the 3 University’s decision-makers and its inve stigator were motivated to favor the 4 accusing female over the accused male, so as to protect themselves and the 5 University from accusations that they ha d failed to protect female students from 6 sexual assault. 7 Columbia argues that the pleaded f acts do not support an inference of 8 intentional sex discrimination. It argues that the criticism of the University was for 9 not taking student complaints of sexual as sault seriously, and that any motivation 10 on the part of the panel to demonstrate that it takes such complaints seriously is not 11 the same thing as a motivation to discri minate against an a ccused male student. 12 The district court stated that any bias in favor of Jane Doe “could equally have 13
been— and more plausibly was —prompted by lawful, independent goals, such as a 14 desire (enhanced, perhaps, by the fear of negative publicity or Title IX liability to 15 the victims of sexual assault) to take allegations of ra pe on campus seriously and to 16 treat complainants with a high degree of sensitivity.” Doe v. Columbia Univ. , 101 17 F. Supp. 3d 356, 371 (S.D.N.Y. 2015). This reasoning fails to recognize the court’s 18 obligation to draw reasonable inferences in favor of the sufficiency of the 1915-1536 (L) John Doe v. Columbia University

26 complaint. Iqbal does not require that the infe rence of discriminatory intent 1 supported by the pleaded facts be the most plausible explanation of the defendant’s 2
conduct. It is sufficient if the inference of discriminatory intent is plausible. 3 The Complaint alleges that, having been severely criticized in the student 4 body and in the public press for toleration of sexual assault of female students, 5 Columbia was motivated in this instan ce to accept the female’s accusation of 6 sexual assault and reject the male’s claim of consent, so as to show the student 7 body and the public that the University is serious about protecting female students 8 from sexual assault by male students—especi ally varsity athletes. There is nothing 9 implausible or unreasonable about the Co mplaint’s suggested inference that the 10 panel adopted a biased stance in favor of the accusing female and against the 11 defending male varsity athlete in order to avoid further fanning the criticisms that 12 Columbia turned a blind eye to such assaults. 11 13

11 It is worth noting furthermore that the po ssible motivations mentioned by the district court as more plausible than sex discrimination, including a fear of negative publicity or of Title IX liability, are not necessarily, as the district court ch aracterized them, lawful motivations distinct from sex bias. A defendant is not excu sed from liability for discrimination because the discriminatory motivation does not result from a disc riminatory heart, but rather from a desire to avoid practical disadvantages that might resu lt from unbiased action. A covered university that adopts, even temporarily, a policy of bias favor ing one sex over the ot her in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has prac ticed sex discrimination, notwithstanding that the motive for the discrimina tion did not come from ingrained or permanent bias against that particular sex.15-1536 (L) John Doe v. Columbia University

27 The Complaint sufficiently alleges circumstances plausibly supporting a 1 similar motivation on the part of Sessi ons-Stackhouse. It alleges that she had 2 suffered personal criticism in the student body for her role in prior cases in which 3 the University was seen as not taking seri ously the complaints of female students. 4 At the time Sessions-Stackhouse investigated Jane Doe's accusation of Plaintiff, 5 she knew that the University had been criticized for its conduct of investigations of 6 sexual abuse, and specifically accused of conducting the i nvestigations in a manner 7 that favored male athletes and that was insufficiently protective of sexually 8 assaulted females. It is pl ausible that she was motivated to refute those criticisms 9 by siding with the accusing female and against the accused male. 10 Columbia further contends that bias on the part of Sessions-Stackhouse 11
cannot be actionable because she “was merely the investigator [and] did not sit on 12 the panel that found [Plaintiff] responsib le for sexual misconduc t.” Defendant’s Br. 13 at 33. It argues, “Because the purported procedural errors we re made by someone 14 who did not participate in determining [Pla intiff’s] responsibility, those errors are 15
insufficient to st ate [a claim].” Id. 16 The argument is not persuasive. A lthough Sessions-Stackhouse was not the 17 decision-maker, she alle gedly had significant influence, perhaps even 18 determinative influence, over the Univers ity’s decision. According to Plaintiff’s 1915-1536 (L) John Doe v. Columbia University

28 allegations, Sessions-Stackhous e was appointed by Columbia to the role of Title 1 IX investigator with the expectation th at her investigations and reports would 2 inform the University’s deci sions. The Complaint plausi bly alleges that her report 3 advocating discipline influenced the Univ ersity’s decision to sanction John Doe. 4 The fact that Sessions-Stackhouse was not the decision-maker does not render sex 5 bias in her performance of her duties irre levant to liability of the University. 12 6 According to precedent under Title VII, a defendant institution is not 7 shielded from liability for discriminati on practiced by an employee endowed by the 8 institution with supervisory authority or institutional influence in recommending 9 and thus influencing the adverse action by a non-biased decision-maker. See 10 Holcomb v. Iona Coll. , 521 F.3d 130, 143 (2d Cir. 2008) (holding that a plaintiff is 11 “entitled to succeed, even ab sent evidence of illegitimate bias on the part of the 12 ultimate decision maker,” so long as a bias ed person endowed with institutional 13 influence “played a meaningful role in the process” (internal quotations and 14 alteration removed)); see also Staub v. Proctor Hosp. , 562 U.S. 411, 422 (2011) 15 (holding, in the context of the Uniformed Services Employment and 16

12 We recognize that depending on the answers to questions regarding the status of the Title IX investigator in the Columbia hierarc hy, the theory of bias on the part of SessionsStackhouse may be precluded by th e standards enunciated in Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290-91 (1998).15-1536 (L) John Doe v. Columbia University

29 Reemployment Rights Act, that when a supervisor performs an act motivated by 1 antimilitary animus intended to cause an adverse employment action, and the act 2 proximately causes that adverse action, th e employer is liable notwithstanding that 3 the biased supervisor did not make the ultimate employment decision). 4 We conclude that the Complaint ad equately pleads facts that plausibly 5 support at least the needed mi nimal inference of sex bias. See Littlejohn , 795 F.3d 6 at 311. Accordingly, we vacate the district court’s dismissal of the Title IX claim, 7 and remand for further consideration. Our d ecision to reinstate the Complaint in no 8 way suggests that our court has any view , one way or the other, on the likely 9 accuracy of what Plaintiff has alleged. We recognize that the fa cts may appear in a 10 very different light once Defendant Colu mbia has had the opportunity to contest 11 the Plaintiff’s allegations and present its ow n version. The role of the court at this 12 stage of the proceedings is not in any way to evaluate the truth as to what really 13 happened, but merely to de termine whether the plaintiff’s factual allegations are 14 sufficient to allow the case to proceed. At this stage, the court is compelled to 15 assume the truth of the plaintiff’s fact ual allegations and draw all reasonable 1615-1536 (L) John Doe v. Columbia University

30 inferences in his favor. Following those rules, we conclude that the Complaint 1 sufficiently alleges that Columb ia was motivated by sex bias. 13 2 CONCLUSION 3 For the foregoing reasons, we VACATE the district court’s judgment 4 dismissing the Complaint and REMAND for further proceedings. 5

13 We also vacate the dismissal of the state- law claims asserted in the Complaint. The district court dismissed these claims without pr ejudice to their renewal in state court, on the theory that these claims were supplemental to the federal-law claims from which the court’s jurisdiction derived. The Complain t, however, asserted diversity jurisdiction as well as federal question jurisdiction. The court will need to address the state-law claims on remand.