This Article offers the first empirical analysis of dismissal trends in reverse Title IX cases and highlights that most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This prodismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation complaint. This Article proposes a more flexible causal pleading scheme that satisfies Twombly, Iqbal, and Swierkiewicz and ensures accused perpetrators receive their day in court. Alternatively, this Article argues for limited predismissal discovery in reverse Title IX suits where the court contends the causational element has been insufficiently pled.
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
Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss6/12