The Miami Decision and the Title IX Race to the Bottom

Universities Liable if They Don’t Pursue Victim As Well.

The Miami decision from the Sixth Circuit has created a new minefield for Title IX coordinators — not pursuing a disciplinary process for a “similarly situated” female now exposes them to an equal protection claim from the male. Simply put: if two students drunkenly hook up and neither could consent, the university now has to pursue both students if one comes forward.

The drunken hookup between college students is a distinct source of frustration for Title IX coordinators across the country. A common scenario for Title IX coordinators is a female complainant of sexual misconduct after a drunken hookup with a male wherein both parties consumed a large amount of alcohol.

Most college handbooks now describe that as an instance of sexual misconduct wherein the male perpetrated sexual contact with someone who was unable to consent.

However, an earnest desire to protect vulnerable, unable-to-consent students is significantly complicated by the sheer prevalence of alcohol in bothconsensual and non-consensual college sexual encounters. It is a tangled web with hazy memories and scant text messages that university administrators are enlisted to unravel.

Fielder and Carey’s (2010) study among 118 first-semester female college students reported that 64% of uncommitted sexual encounters follow alcohol use, with a median consumption of 3 alcoholic drinks.

Similarly, another study found that nearly 61% of undergraduate students used alcohol, with an average of 3.3 alcoholic drinks, during their most recent hookup (Neighbors et. al., 2011). Yet another found nearly 80% of students indicated that alcohol was involved in initiating their most recent hookup, with 64% attributing the progression and extent of the hookup to alcohol (Downing-Matibag & Geisinger, 2009).

A popular argument in contemporary media is pointing out the distinct unfairness of penalizing only one party to drunken sex when, in fact, university rules dictate both parties were unable to consent.

Miami has given this argument a legal voice.

The Miami Title IX Equal Protection Claim

This plaintiff’s claim is a very new one, one that plaintiffs have yet to take advantage of and one that universities could be unaware of. University policy states that intoxicated students are incapable of consent, so they become exposed to an equal protection claim if they enact disciplinary procedures on only one of the two students.

Miami determined a male student’s equal-protection claim could not be dismissed because his complaint alleged:

(a) His university “did not initiate [a] disciplinary process against” a female student who was “similarly situated” which the Sixth Circuit defined as requiring “‘relevant similarity” but not “exact correlation.”; and,

(b) The university’s differing treatment “was based on ‘purposeful or intentional’ gender discrimination.

Plaintiff established the first element because on one hand, the university’s Title IX coordinator — Susan Vaughn — charged plaintiff with violating Title IX based on his interactions with Jane Roe when plaintiff was intoxicated.

On the other hand, Vaughn did not charge Jane Roe even though Vaughn knew:

(1) “Jane had potentially violated the University’s sexual misconduct provisions at the same time she reviewed the allegations against” plaintiff, and

(2) “Jane had engaged in non-consensual sexual acts against John, when John was so intoxicated he was unable to provide consent . . . .”

In further discussing the policy implications of the first element, Miami noted:

“[T]hat the exact alleged sexual misconduct of each student is not the same . . . But we have not previously required a plaintiff to allege that the misconduct giving rise to an allegedly discriminatory disciplinary outcome be of the same type and degree.”

The plaintiff established the second element because “[t]aken together” plaintiff’s gender bias evidence “shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to-dismiss stage a reasonable inference of gender discrimination.”

The Double Bind…

This creates an obvious double-bind for universities. Outside the legal realm, it is incredibly hard for universities to bear the public relations burden of enacting a disciplinary process against a student who comes forward to report sexual misconduct when both parties are intoxicated.

…and the Race to the Bottom

The natural logical path when one considers the Miami decision is a contemplation of whether one of the two parties was more unable to give consent than the other. This, obviously, is not a desirable outcome for anyone, but it’s the natural path that grows from the typical articulation of affirmative consent policies at universities. When the definition of consent now includes someone who was too intoxicated to be able to consent, you will have situations where both parties are at that stage.

From there, it is a battle of who was more intoxicated or proving that the perpetrator was not as intoxicated as they said they were. Without cumbersome toxicology reports, which come with their own issues, there will simply be little to no objective measure of each party’s level of intoxication.

How many drinks did you have? How long was that before you went to the room? Who saw you? Was the victim stumbling? Was the victim slurring their words? How long was it between your last drink and the act? Did you drink while you had sex? What else was in your system that night? How often do you drink?

It’s going to be an endless spiral into the minutia of the situation where no one truly feels any sense of justice.

One step forward feels like two steps back. Not every drunken hookup is the same and, many times, alcohol is used as a more socially-acceptable date rape drug. There needs to be some recognition of that. But crafting definitions that match every contour of human experience is a near impossible task. It seems that all sides are stuck in an endless feedback loop. What is a victim to do when a university has to initiate disciplinary policies against her as well? There are enough barriers to coming forward already. A punishment seems an unjust reward for coming forward.

A Solution?

There seems to be two solutions: universities starting disciplinary proceedings in-name-only against the victim or complete abdication of the issue by universities to local police.

The first seems a likely response, but an unwise one. A couple different things could fall out from this that only opens up universities to more liability. They can initiate the charges against the student, only to throw them out a week later with a wink and nod, or they can initiate them and give only a slap on the wrist as a punishment. Both roads, however, open up universities to a “selective enforcement” claim. They are back to exactly where they started.

The second one is perhaps the wiser choice but is unlikely to ever happen. Whether or not universities should handle sexual assault claims at all have been discussed at length by a variety of people much smarter than myself, so I make no attempt to give the issue a proper treatment here.

Either way you cut it, universities and victims are now between a rock and hard place until there is a more uniform and nuanced way of defining intoxication/incapacitation as related to consent. The Miami equal protection claim is a powerful one and only time will tell how other courts choose to wrestle with it.


Doe. v. Miami Univ., №17–3396, — F.3d — , 2018 WL 797451 (6th Cir. Feb. 9, 2018)

Fielder, Robyn L., and Michael P. Carey. “Predictors and consequences of sexual “hookups” among college students: A short-term prospective study.” Archives of Sexual Behavior 39.5 (2010): 1105–1119.

Neighbors, Clayton, et al. “Event-specific drinking among college students.” Psychology of Addictive Behaviors 25.4 (2011): 702.

Downing-Matibag, Teresa M., and Brandi Geisinger. “Hooking up and sexual risk taking among college students: A health belief model perspective.” Qualitative Health Research 19.9 (2009): 1196–1209.

Brandon Paul is a Wake Forest Law student writing on topics of Innocence and Justice, Title IX law, and forensics in criminal law.

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