In April 2011, the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter having a profound impact on reverse Title IX discrimination claims.[1] As a result, courts saw an influx of Title IX claims being filed by students accused of sexual misconduct. Twombly, Iqbal, and Swierkiewicz have defined the federal pleading standard for all civil actions.[2] However, two circuit courts are split on the pleading standard for Title IX claims. The second circuit in Columbia University, modified the pleading standard and held that a Plaintiff’s complaint only needs to show a minimal plausible inference of discriminatory intent to survive a motion to dismiss.[3] This reduced the facts needed to be pled under Twombly and Iqbal. The sixth circuit in Miami University, declined to adopt the second circuit’s reasoning and refused to modify the federal pleading standard. Instead the court in Miami University, kept the pleading standard unaltered for Title IX claims and stated that plaintiffs alleging gender discrimination under the statute must adhere to the pleading requirements set forth in Twombly and Iqbal.[4]
A Plaintiff does not need to plead and establish a prima facie case of discrimination in order to avoid its complaint being dismissed for failure to state a claim. Pleading a prima facie case of discrimination is not necessary.[5] Swierkiewicz rejected any requirement that the plaintiff plead a prima facie case of discrimination under the McDonnell Douglas formula in order to survive a motion to dismiss.[6]
Discrimination claims are subject to the same “heightened” (i.e., plausibility) pleading standard as all routine civil actions, and a complaint must contain sufficient factual allegations to give the claim credibility, but the allegations need not mirror or rise to the level of a prima facie case…. Thus, plaintiffs do not need to establish a prima facie case of discrimination at the pleading stage.[7]
However, the claim must be facially plausible as required by Twombly and Iqbal. Although the second circuit’s notion that a Plaintiff alleging a Title IX claim does not need to establish a prima facie case of discrimination is sound, it is misguided and goes too far when it altered the pleading standard and reduced the facts needed to be plead under Iqbal.
The answer is simple. A complaint states a plausible claim or it does not. Plaintiffs should not be relived from pleading a plausible claim simply because he alleges a Title IX claim. When claiming a violation of Title IX, a Plaintiff must still adhere to the pleading standard established in Twombly and Iqbal and must plead enough factual allegations to nudge their claim from conceivable to plausible.
The confusion among circuit courts will only be amplified following the circuit split between the second and sixth circuit. There are “federal interests in uniformity, certainty, and the minimization of unnecessary litigation” and the circuit split will further undermine these interests.[8] The lack of uniformity regarding a clear pleading standard for Title IX claims poses serious costs, especially since there has been an influx of reverse discrimination lawsuits being filed. Parties filing reverse discrimination claims outside the second and sixth circuit will have to guess whether their circuit will adopt Columbia’s burden-shifting framework in which “the plaintiff needs only to present only minimal evidence supporting an inference of discrimination” to survive a motion to dismiss or whether the traditional pleading standard of Twombly and Iqbal apply.[9] Parties will have no choice but to spend more time carefully preparing their complaint to state more facts, significantly increasing the length of complaints, in order to avoid having their complaint dismissed for failing to adhere to the federal pleading standard illustrated in Twombly and Iqbal. This uncertainty undoubtedly increases cost and waste precious judicial resources.
To alleviate this confusion, the Supreme Court should clarify the pleading standard for Title IX claims. The conflicting approaches taken by the second and sixth circuit illustrate that judges do not know the proper pleading standard to apply regarding Title IX claims.
*J.D. Candidate, 2020, Florida International University College of Law
[1] See Office for Civil Rights, U.S. Dep’t Educ., Dear Colleague Letter 1, 3 (2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter 2011 DCL].[2] See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).
[3] Doe v. Columbia Univ., 831 F.3d 46, 54-55 (2d Cir. 2016).
[4] Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018).
[5] Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002).
[6] Id.
[7] Bethany A. Corbin, Riding the Wave or Drowning?: An Analysis of Gender Bias and Twombly/Iqbal in Title IX Accused Student Lawsuits, 85 Fordham L. Rev. 2665 (2017).
[8] Judicial Improvements Act of 1990, Pub. L. No. 101-650, § 313(a), 104 Stat. 5089, 5114-15.
[9] Columbia Univ., 831 F.3d at 54.