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College not liable under Title IX for student’s expulsion
February 27, 2020After a college student who alleged her professor made inappropriate sexual comments to her was expelled, the Sixth Circuit found that the college’s reliance on the professor’s testimony that the student had cheated on tests in its expulsion decision did not violate Title IX. The court’s decision highlights the limits of Title IX protections where a plaintiff cannot show that the ultimate decisionmaker—in this case, the college—harbored a discriminatory motive. (Bose v. Bea, 2020 WL 425402 (6th Cir. Jan. 28, 2020).)
Prianka Bose was a student at Rhodes College from 2013 to 2015. She alleges that beginning in summer 2015, her professor, Roberto de la Salud Bea, began making unwelcome sexual advances. In November 2015, Bose confronted Bea about the advances and asked him to maintain a professional relationship toward her. Less than two weeks after that confrontation, Bea initiated a complaint of academic misconduct against Bose. Bea claimed that Bose had cheated on tests and quizzes and altered her grades in the grade roster. Rhodes College’s honor council conducted a hearing and found Bose had violated the school’s honor code and recommended expulsion, despite Bose’s argument that Bea’s complaint was retaliatory. The faculty appeals committee affirmed the decision, finding that even if Bose’s allegations of sexual harassment against Bea were valid, there was adequate evidence against Bose to support the expulsion recommendation.
Bose then initiated a Title IX complaint through the college’s Title IX coordinator. The complaint was denied, and Bose filed suit in federal court in May 2016.
In her federal suit, Bose brought a defamation claim against Bea under Tennessee law; because there is no individual liability under Title IX, she could not bring a Title IX claim directly against Bea for his actions. But in her Title IX claim against the college, Bose alleged that the college’s expulsion decision was tainted by Bea’s animus toward her. Under the “cat’s paw” theory of liability, Bose argued, “the discriminatory or retaliatory animus of a non-decisionmaker is imputed to a decisionmaker where the non-decisionmaker uses the decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory or retaliatory action.”
The district court rejected Bose’s theory of liability, finding that she had presented no evidence that the college “harbored any discriminatory motive,” and dismissed her Title IX claim. The court also rejected Bose’s defamation claim against Bea under Tennessee law, finding that Bea’s statements during the expulsion proceedings were subject to absolute privilege as part of a quasi-judicial proceeding.
On appeal, the Sixth Circuit agreed with the district court as to the Title IX claim, finding that Bose had failed to establish an essential element of the claim—that “a causal connection exists between the protected activity and the adverse action.” The court also concluded that the cat’s paw theory does not apply to Title IX claims, as it is “inconsistent with Title IX principles requiring that a funding recipient be held liable ‘only for its own misconduct.’” (citing Davis v. Monroe City Bd. of Educ., 526 U.S. 629 (1999)). The court further concluded that Bose had forfeited any argument that the college had actual notice of Bea’s retaliatory motive but had acted in a deliberately indifferent manner.
Bose also requested that the Sixth Circuit consider “the scope of the judicial privilege under Tennessee defamation law.” On this claim, the court sided with Bose, finding that while Tennessee grants absolute privilege to quasi-judicial proceedings by state departments and agencies, this grant is in recognition of a “strong benefit to the public, often tied to a statute or powers which the Tennessee legislature has specifically granted to the tribunal at issue.” Here, the court said, Bea cannot show a public benefit of the college’s proceedings. The court added that “Tennessee has never cloaked defamatory statements made to private entities with an absolute privilege,” and reversed the district court’s dismissal of Bose’s defamation claim.
Minneapolis attorney Adam Hansen, who represents Bose, called the court’s ruling on the Title IX claim “disappointing.” If allowed to stand, he added, the decision will “severely undermine Congress’s goals in eradicating sex discrimination in higher education.”