By: Deborah Krabbendam and Patricia Hamill
In Ames v. Ohio Dep’t of Youth Servs., No. 23-1039, 2025 WL 1583264 (U.S. June 5, 2025), the Supreme Court held unanimously that the “background circumstances” rule imposed by some lower courts, requiring members of a perceived “majority” group to satisfy a heightened evidentiary standard to prevail on a Title VII discrimination claim, cannot be squared with the text of Title VII or the Court’s precedents. The antidiscrimination laws protect individuals, and, in the words of the concurring opinion, courts addressing discrimination claims cannot impose “a higher burden on some individuals based solely on their membership in a particular demographic group.” Id. at *6.
While the Ames case involved a Title VII sexual orientation discrimination claim, the Court’s reasoning applies equally to gender discrimination claims under Title IX. In the Title IX context, lower courts have held that male plaintiffs who claim their schools wrongfully found them responsible for sexual misconduct and treated them differently from their female accusers must – even at the pleadings and summary judgment stages – show a “particularized causal connection” between the challenged conduct and gender bias. Courts have not imposed a comparable heightened burden on female plaintiffs bringing Title IX claims and alleging that they were victims of sexual misconduct. Indeed, schools have routinely argued, and some courts have held, that discrimination in favor of a purported victim of sexual misconduct and against the accused party is not gender bias. Some courts have gone so far as to hold that “pro-victim” discrimination is a legitimate nondiscriminatory reason for erroneous conclusions, flawed procedures, skewed processes, and baseless reasoning, and have granted motions to dismiss or summary judgment for defendant schools on that ground. These approaches are a blatant violation of the standards governing such motions. Courts are resolving inferences in favor of defendant schools, adopting inferences that are not even reasonable, and are themselves perpetuating gender discrimination when they refuse to acknowledge the obvious relevance of the fact that most Title IX complainants are female and most respondents male, when they discount statistics with the excuse that schools are not responsible for the gender makeup of who complains, when they hold that differential treatment of complainant and respondent in a particular disciplinary proceeding is not evidence of discrimination, and when they hold that men and women who complain of misconduct by the other are not similarly situated unless their situations are essentially identical.[1]
Just as Ames has held that courts must not apply different standards to perceived “majority” and “minority” group plaintiffs under Title VII, the argument could be extended into the context of Title IX litigation to hold that courts must not apply different standards to plaintiffs accused of sexual misconduct (the “accused group”) than to those who claim to be victims (the “accuser group”) under Title IX. To support that argument, we quote from the majority opinion, simply substituting Title IX and its provisions for Title VII and its provisions, and “accused” and “accuser” group, respectively, for “majority” and “minority” group:
As a textual matter, [Title IX’s] disparate-treatment provision draws no distinctions between [accused-group and accuser-group] plaintiffs. . . . Rather, [Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (emphasis added). . . . By establishing the same protections for every . . . [“person”] —without regard to that individual’s membership in a minority or majority group [including whether that person is a male or female, accuser or accused]—Congress left no room for courts to impose special requirements on . . . [accused-group] plaintiffs alone.
. . .
Our precedents reinforce that understanding of the statute. . . [and] make[] clear that the standard for proving disparate treatment under Title [IX] does not vary based on whether or not the plaintiff is a member of a [particular] group. Accord, Bostock, 590 U.S. at 659, 140 S.Ct. 1731 (“This statute works to protect individuals of both sexes from discrimination, and does so equally”). The [“particularized causal connection”] rule flouts that basic principle.
The [“particularized causal connection”] rule also ignores our instruction to avoid inflexible applications of [what is sufficient to establish a prima facie case,] . . . uniformly subjecting all . . . plaintiffs [claiming to have been falsely accused] to the same, highly specific evidentiary standard in every case. . . . [T]he rule effectively requires . . . [accused]-group plaintiffs (and only . . . [accused]-group plaintiffs) to produce certain types of evidence . . . that would not otherwise be required to make out a prima facie case. . . . This Court has long rejected such “inflexible formulation[s]” of the prima facie standard in disparate-treatment cases. . . . We do so again today.
2025 WL 1583264, at *4-5.
The concurring opinion further nails a key point: courts imposing higher burdens on different demographic groups “have enshrined into [Title IX’s] antidiscrimination law an explicitly [gender]-based preference: [accused-group plaintiffs – usually male] must prove the existence of [particularized] circumstances, while [accuser-group plaintiffs – usually female] need not do so.” 2025 WL 1583264, at *8.[2] Such preferences contradict not just the text of Title IX, but also the standards governing motions to dismiss and summary judgment: plaintiffs must not be required to prove their claims before being allowed to present them to a jury, reasonable inferences should be drawn for the non-moving party, and courts should not artificially constrain “the various ways in which a plaintiff could prove his claim.” Id. at *10.
Judge Menashi of the Second Circuit has previously summarized the relevant arguments in a most compelling way, stating that “an anti-respondent bias is a sex-based bias”: “It is true that ‘both men and women can be respondents.’ But both men and women can be complainants too—and yet we would never say that a university may escape liability for deliberate indifference to sexual assault because it may have been motivated by an anti-complainant bias instead of an anti-female bias. To the contrary, we say that deliberate indifference to cases of sexual assault by the university ratifies the perpetrator’s targeting of the complainant on the basis of sex, and that satisfies the requirement of demonstrating a sex-based bias. . . . We have held that accusations of sexual misconduct work the same way . . . .” Roe v. St. John’s Univ., 91 F.4th 643, 671-72 (2d Cir. 2024) (Menashi, J., dissenting) (cleaned up). See also Schiebel v. Schoharie Cent. Sch. Dist., 120 F.4th 1082 (2d Cir. 2024), where Judge Menashi, in addressing the Title IX claims in that case and this time writing for the majority, held that a school’s argument that its decision could be explained by pro-victim bias was an admission that the school “conducted a biased rather than an impartial investigation.” “Even assuming that an “anti-respondent bias” can be distinguished from an “anti-male bias” here, the presence of such a bias would represent a serious procedural irregularity—and it would suggest that the recipient was deliberately indifferent to the truth or falsity of the accusation it was purportedly investigating.” It is not the court’s function “to decide which was the defendant’s true motivation” as opposed to which inferences are reasonable.” Id. at 1105-06 (cleaned up). The Ames case definitively establishes that Judge Menashi is right.
It would seem that counsel handling litigation arising from Title IX disciplinary proceedings can leverage the Supreme Court’s unanimous decision in Ames and challenge the inappropriately heightened burdens courts are imposing on plaintiffs in the “accused” group in Title IX lawsuits.
[1] To reinforce our point, in other contexts discriminatory impact is routinely acknowledged to be evidence of discriminatory intent, and people routinely argue that failing to protect victims is discrimination against women.
[2] Same substitution of language as explained above.
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