WDVA Holds that Victim and Accused are not “Similarly Situated” in a Title IX Equal Protection Claim

In a recent education law decision, the Honorable Norman K. Moon of the Western District of Virginia dismissed the equal protection claims of a plaintiff, the accused, who alleged that under Title IX, he had not been afforded the same procedural protections as his accuser, the victim. See Doe v. Univ. of Virginia, No. 3:22-cv-00064, 2023 WL 2873379 (W.D. Va. Apr. 10, 2023).

The case was brought by a former University of Virginia student who was expelled following a Title IX investigation at the school. The expelled student alleged that after a late evening of alcohol consumption, he and another male had engaged in consensual sexual relations with a female student. The next day, the female student, Jane Roe, submitted a sexual assault claim to UVA. UVA conducted a Title IX investigation which found the male student, John Doe, responsible for sexual assault. Among other findings, UVA’s Title IX investigator found that Jane Roe was incapacitated due to alcohol intoxication and incapable of giving consent. Following the investigation, pursuant to its Title IX policy, UVA convened a review panel which ultimately expelled John Doe from the university.

In the lawsuit, John Doe alleged that UVA treated him differently than Jane Roe both during the investigation and during the subsequent review panel. Among other allegations, John Doe claimed that UVA interviewed all witnesses identified by Jane Roe but not all the witnesses identified by him. He also claimed that he was required to respond to all questions posed to him while Jane Doe was not.

Among other causes of action, John Doe brought a § 1983 claim for an equal protection violation under the U.S. Constitution. Specifically, he alleged that UVA’s Title IX procedures impermissibly treated him differently than Jane Roe.

Courts have long held that in the equal protection context, a plaintiff must plead “that he was treated differently from others who were similarly situated, and that the unequal treatment was the result of discriminatory animus.” Sheppard v. Visitors of Virginia State Univ., 993 F.3d 230, 238 (4th Cir. 2021). The issue resolved by Judge Moon was whether, in a Title IX disciplinary context, an accused and his accuser are “similarly situated.”

Noting that the Court of Appeals for the Fourth Circuit had never articulated what “similarly situated” means in a student disciplinary context, the plaintiff argued that he was “similarly situated” to Jane Doe because both were entitled to a “fair, thorough, and impartial” investigation by UVA under Title IX. Judge Moon disagreed.

Pointing to the Eight Circuit which in turn pointed to common sense, Judge Moon held that under the facts of the case, the accused and accuser were not “similarly situated.” The Court quoted Does 1-2 v. Regents of Univ. of Minn, 999 F.3d 571, 580 (8^th Cir. 2021): “It goes without saying that a sexual assault complainant and those she accuses of sexual assault are ‘not similarly situated as complainants.’” Judge Moon then dismissed John Doe’s equal protection claim.

While tenacious litigators are always looking to push boundaries when crafting complaints, a smart lawyer must tread carefully. The Virginia Model Jury Instructions have long instructed the jurors in the Commonwealth that they are “entitled to use their common sense” in their deliberations. Judges evaluating the merits of causes of action are not immune from the same logic.