U.S. Court of Appeals for the Fifth Circuit Signals Acceptance of Purdue Standard, in Line with Binnall Law Group’s Amicus Curiae Brief Filed on Behalf of SAVE
By Ben North
On April 6, 2022, the Fifth Circuit heard oral argument in Van Overdam v. Texas A&M University, case No. 21-20185, in which the student-plaintiff appealed the dismissal of one of his Title IX claims as well as the dismissal of his claims for violations of his right to due process. In October 2021, the Binnall Law Group submitted an amicus curiae brief, on behalf of Stop Abusive and Violent Environments (“SAVE”), in support of the student, arguing for a pro-student change in Title IX law. It appears from the oral argument that the judges were supportive of SAVE’s arguments, meaning a change in Fifth Circuit Title IX precedent is likely to occur.
Title IX is a federal law that protects all “persons” receiving educational benefits from sex discrimination, including discrimination that takes the form of sex-biased discipline. Before 2019, most courts reviewing Title IX claims brought by wrongfully disciplined students applied the “Yusuf categories.” Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).
Yusuf allowed two Title IX claims under which accused students could proceed, “erroneous outcome” and “selective enforcement.” “Erroneous outcome,” generally required a plaintiff to (1) cast some “articulable doubt” on the accuracy of the outcome of the university’s Title IX process, and (2) put forth evidence that the cause of that erroneous outcome was due to gender bias. By contrast, “selective enforcement” required a plaintiff to show, irrespective of the outcome, that the plaintiff was treated differently because of their sex.
In practice, these claims presented technical problems for plaintiffs. First, “erroneous outcome” would permit sex-biased decisions as long as they came to the “right” outcome. It also allowed completely arbitrary discipline so long as the plaintiff could not muster evidence of sex-bias separate from the decision or process itself. Finally, courts applying “selective enforcement” required plaintiffs to show a comparator, which tended to require a male accused student to find a female accused student (an extreme rarity) at the same school who was treated more favorably.
This changed in 2019 in the landmark decision of Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019). In Purdue, the Seventh Circuit established a new and far simpler standard for Title IX claims. In an opinion authored by now Supreme Court Justice Amy Coney Barrett, the Court decided that instead of superimposing specific doctrinal elements on plaintiffs – not found in the Title IX statute – the correct standard should simply require plaintiffs to set forth enough evidence, from the totality of the case, showing “that sex was a motivating factor in a university’s decision to discipline a student.” Purdue, 928 F.3d at 667. This became known as the Purdue standard and ultimately led to a split among the Circuits. In utilizing the language of the Title IX statute, Purdue more effectively enforces Title IX’s purpose, to eradicate sex discrimination in all its forms.
In the present Fifth Circuit argument, this issue was squarely before the Court. The plaintiff brought “erroneous outcome” and “selective enforcement” claims at the district court. The university filed a motion to dismiss, which resulted in the court dismissing the “erroneous outcome” claim but not the “selective enforcement” claim. After this decision, the university succeeded in limiting discovery to the only surviving Title IX claim, which prevented the student from probing whether discrimination affected the outcome of the university disciplinary hearing. The student appealed, giving the Fifth Circuit the opportunity to expressly adopt Purdue. This outcome would ensure that Title IX is more adequately enforced across the schools in the Fifth Circuit.
For the above reasons, Binnall Law Group, on behalf of SAVE, advocated for the adoption of Purdue. We were delighted to hear at the outset of oral argument that the judges of the Fifth Circuit expressed strong support for Purdue. This support was reiterated throughout both the student’s arguments in favor and the university’s arguments against Purdue’s adoption. We believe it is likely that the Fifth Circuit will join the Third, Fourth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits in expressly adopting Purdue.
Sex discrimination has no place in education. Purdue most effectively enforces that principle. Now, we eagerly await a (hopeful) win in the Fifth Circuit – both for students and for Title IX.