A Title IX Challenge to a Title IX Enforcement

Editor's Note: After posting this article we learned that Professors Joe Dryden, David Stader, and Jeanne L. Surface had published an excellent article in the University of Idaho Law Review which did a comprehensive review of the issues in this post.  The full article "Title IX Violations Arising from Title IX Investigations: The Snake is Eating its Own Tail" can be found here

There has been a lot of discussion in the news and on college and high school campuses regarding “rape culture” and required responses from educational institutions covered by Title IX.  The University of Nebraska’s athletic programs have emphasized training and education in these issues, which has also been in the news.  All recipients of federal funding are required to provide Title IX training, including public schools.  If your district hasn’t provided this training to at least your Title IX Coordinator—or if you can’t name your coordinator as you read this—it’s time to audit your Title IX compliance before the school year begins.  A recent decision involving Colorado State University emphasizes this point even more.  It is a great illustration of how difficult it can be to respond appropriately to allegations of sexual assault while also protecting the rights of all parties involved. 

After the federal Department of Education’s 2011 Dear Colleague letter, many schools revised their Title IX investigation and complaint procedures.  In some instances, court cases and commentators asserted that the changes deny due process rights to accused individuals.  In the case discussed below, an accused student made this argument with a twist; he argued that the Title IX investigation and complaint procedures of Colorado State University violated his rights under Title IX by affording him and other male students a disproportionately unfair process on the basis of sex.  

Background of the Case

In Neal v. Colo. State University – Pueblo, one student alleged to a university staff member that Neal, a student-athlete involved in football and wrestling, had raped another student referred to anonymously as Jane Doe.  The complaint stemmed from assumptions the complainant made following a conversation with Jane Doe.  Jane Doe was in the University’s athletic training program and prohibited from fraternizing with athletes.  When the complainant approached Doe about a hickey on her neck, Doe attempted to conceal the nature of her relationship with Neal.  This led the complainant to assume Neal had raped Doe or that there was at least a basis to make a report.  Neither Neal nor Jane Doe were aware that the complainant had made the allegations.

A short time after the complaint, the school’s Title IX coordinator was notified and an investigation into the incident began.  The investigation concluded in a decision finding Neal guilty of sexual misconduct.  The administration declined to hear an appeal on the matter.  The university suspended Neal until Jane Doe’s graduation or disenrollment.

Title IX Claim

Under Title IX, “no person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  20 U.S.C. § 1681(a).  When a disciplinary or investigatory process conducted by a school discriminates against accused individuals on the basis of sex, that discrimination is a violation of Title IX and provides a right of action. When a school’s response to a complaint “is clearly unreasonable in light of known circumstances” or the proceedings were “intentionally biased”, a Title IX claim may be triggered.

According to Neal, the proceedings which found him guilty were unreasonable, intentionally biased, and the discrimination he faced had a causal connection to his sex and status as a male student athlete.  The investigation denied Neal many customary elements of due process, including the right to call witnesses, the ability to introduce evidence, the right to examine witnesses, and advance notice of hearings.  Neal claimed he was “railroaded” by a university eager to make examples out of male athletes.  During the investigation, both he and Doe offered consistent testimony that all sexual encounters were not only consensual, but also ongoing.  The investigator failed to hear any witnesses favorable to Neal, including the football coach.  Further, the investigator “disregarded overwhelming physical evidence tending to exculpate [Neal], including a voice recording of Jane Doe stating nothing improper occurred, hand written letters, snapchats, numerous text messages, and a subsequent sexual encounter less than 24 hours after the alleged incident.”

Neal further alleged that his treatment was among a pattern of investigations skewed against males, especially male athletes, which resulted in significant discipline.  Neal contended that this pattern was a result of the school’s reaction (or perhaps more accurately “overreaction”) to OCR enforcement of Title IX in the wake of the 2011 Dear Colleague Letter. 

This claim was, in part, based upon communications which indicated the university was biased against male athletes accused of sexual violence.  Specifically, the investigator stated that university “[football] players have a problem” with sexual misconduct.  Prior to the conclusion of the investigation, the investigator held a meeting with the football team to address this “problem” with sexual misconduct and directly referenced Neal in front of his teammates as a cautionary tale against engaging in non-consensual sex.  In the investigator’s report, the investigator noted that Neal was a member of the football team and that there were other investigations pending which dealt with other team members.  This in part fueled Neal’s claim that he was a victim caught up in the fight against accusations of having a “rape culture” in the football program.

Finally, Neal asserted that the bias was pervasive even in the decision rendered against him.  In the decision, Jane Doe was repeatedly referred to as “the complainant” despite the fact that an uninvolved third party brought the complaint.  Further, the decision only gave weight to the evidence against Neal.

The court rendered this decision on a motion to dismiss the lawsuit filed by the university.  The court found that, if the facts that Neal alleged were true, he had a valid Title IX claim because the investigatory process was “clearly unreasonable” or “intentionally biased” and the discriminatory process had a causal relationship with his sex.  Neal’s alleged facts were sufficient to demonstrate that his discipline occurred in whole or in part because of his sex, so his lawsuit against the university will proceed forward.


Title IX requires all covered entities to investigate complaints of sexual violence.  The investigation process should be thorough and handled with care.  It is important that the process be unbiased and impartial.  While the law is not always clear regarding the appropriate amount of “due process” owed to the accused, this court’s decision was highly critical of the lack of “basic due process” given by the university to the student.  An improper response to Title IX complaints, even if well-intentioned, can give rise to subsequent legal issues.  Schools should regularly revisit their Title IX complaint and investigatory procedures to ensure proper handling.  It is also important to train relevant staff members on these issues, and to ensure that investigators are equipped to conduct investigations that comply with the requirements of Title IX and basic due process.  KSB will be providing state-wide training in collaboration with Nebraska’s ESUs during the second semester of the 2017-18 school year.  If you have any questions about Title IX compliance, you should contact your district’s lawyer or call Karen, Steve, Bobby, or Tim.