Student Title IX claim survives against Va. Tech

A student subject to sanctions in a disciplinary process as a result of sexual assault and harassment allegations can move forward with his claim against the school that he was discriminated against in violation of Title IX on the basis of his being a man, the U.S. District Court for the Western District of Virginia has ruled.

Mason Ortegel was accused of sexual assault and harassment by another student at Virginia Tech. Following a disciplinary process, hearing officers issued several sanctions against Ortegel, including a deferred suspension and assigned reading with written reflections.

After Ortegel’s internal appeals were denied, he filed suit in federal court against the school and two individuals in their official capacity, alleging that he was discriminated against as a man in violation of Title IX and the 14th Amendment.

The defendants moved for summary judgment. The court granted the motion — with the exception of Ortegel’s Title IX claim against Virginia Tech.

“[One of the hearing officers’] social media statements, deposition testimony, and [reading assignment] raise a genuine issue of material fact as to whether he harbored a sex-based bias that influenced his role as a hearing officer overseeing
Ortegel’s Title IX adjudication,” Chief Judge Elizabeth K. Dillon wrote in the mid-April decision. “As one of two hearing officers responsible for adjudicating the matter and issuing a decision on behalf of the Office of Student Conduct, [the officer] played a significant role in Virginia Tech’s disciplinary decision. Therefore, a reasonable jury could conclude sex was a but-for cause of the outcome in
Ortegel’s case.”

The 36-page opinion is Ortegel v. Virginia Polytechnic Institute & State University (VLW 026-3-177).

Virginia Tech was represented by Kristina J. Hartman. A spokesperson for the school declined to comment on the decision.

Alexandria attorney Jason C. Greaves of Binnall Law Group, who represented Ortegel, did not respond to a request for comment.

Disciplinary hearing, sanctions

Ortegel matriculated in fall 2020 at Virginia Tech, where he participated in the Virginia Tech Corps of Cadets (VTCC) and U.S. Army’s Reserve Officers’ Training Corps (ROTC).

Jane Roe, a female student one year ahead of him who was also a member of the VTCC and ROTC programs, called him one night asking whether he could raise the flag the following morning, a VTCC responsibility.

Ortegel declined, telling her he was “sloshed.” He then texted her and returned to his dorm room with the help of his friend. The last thing he remembered was going to bed.

Roe later received a call from Ortegel and went to his room to check on him after checking on another friend. Roe reported that while she was in his room, Ortegel
made inappropriate sexual comments to her, kissed her and asked her to have sex with him.

When she refused, he grabbed her by the throat and then her wrists. Roe was able to get away from Ortegel. Later that night, she received a text from him that read “I’m sorry,” and another stating, “please don’t tell anybody.”

Roe reported the incident to several people that night and subsequently filed a formal complaint. A disciplinary process was initiated, with Katie Polidoro as the school’s Title IX coordinator. DaShawn Dilworth and another individual were appointed as the hearing officers in the case.

At the conclusion of the disciplinary hearing, the officers found Roe to be credible. Ortegel’s credibility was undermined by several factors, primarily his level of intoxication and inability to recall key events.

The officers determined Ortegel violated Virginia Tech’s Student Code of Conduct and issued sanctions of a deferred suspension; participation in services by the school’s wellness center; submission of a counseling log reflecting on his well-being; reading the self-help book “Man Enough: Undefining My Masculinity,” by Justin Baldoni and submitting written reflections on each chapter; writing two letters of acknowledgement to individuals impacted by the incident or who may learn of it in the future; identifying and meeting with a mentor, along with submitting written responses regarding those meetings; and attending three follow-up meetings.

Ortegel’s internal appeal was denied, and he filed suit.

‘Conflicting narrative’

Ortegel alleged that he was discriminated against on the basis of being a man, expressing misgivings about the outcome of his Title IX hearing as the product of unlawful gender bias against him. Central to these allegations: Dilworth, whose conduct Ortegel identified as indicative of such bias, highlighting his public statements on social media, his deposition testimony and the reading sanction.

Prior to his appointment in Ortegel’s case, Dilworth tweeted that he is “doing [his] part to hold [] other men accountable” and retweeted the statement, “Quite interesting how many college aged boys and men seem to understand consent when it comes to drinking their chocolate milk, but not when it comes to someone else’s body and space.”

During his deposition, Dilworth spoke about implicit biases and stated his belief that we live in a patriarchal society, with Virginia Tech part of this “system of patriarchy.” He also acknowledged that if Ortegel
were female, he would have assigned a different book to read as a sanction.

Taken together, these statements “at best reflect a tension between Dilworth’s professed commitment to impartiality and his acknowledgement of sex-based implicit bias in favor of men, created in part by the patriarchal society, which he tries to actively counteract,” the court wrote. “This conflicting narrative creates a genuine dispute of material fact as to whether
Dilworth held a sex-based bias against men that influenced his role in Ortegel’s case as one of two hearing officers. A reasonable jury could find either way.”

The book assignment introduced “additional concerns” as to Dilworth’s objectivity, the court said, as from “Dilworth’s
own testimony, a reasonable juror could conclude that he believed Ortegel had a ‘masculinity problem,’ that such a problem was common among male cadets, and that Dilworth imposed a sanction rooted in sex-based assumptions rather than in a case-specific analysis of Ortegel’s conduct — which, from the record, suggests a potential alcohol problem, among other things, rather than solely — or even primarily — a masculinity problem.”

Individual defendants off the hook

Considering Ortegel’s 14th Amendment claim against Dilworth in his individual capacity, the court reached a different conclusion.

Ortegel neither alleged nor produced evidence that he was treated differently from similarly situated individuals and thus failed to identify a proper comparator, the court found.

Similarly, the court granted Polidoro’s motion for summary judgment on the claims against her in her official capacity as Title IX coordinator.

Ortegel sought injunctive relief in the form of a permanent injunction prohibiting Polidoro from making or maintaining any notation on his educational record relating to Roe’s complaint, as well as declaratory relief that his equal protection and due process rights were violated.

But the undisputed evidence showed that the Title IX coordinator played no part in the disciplinary hearings, leaving Polidoro without the authority to expunge the records relating to a hearing over which she exercised no authority.

Polidoro’s role as Title IX coordinator did not constitute the kind of “special relation” required for Ex parte Young to apply, the court explained.

The court granted summary judgment in favor of the defendants with the exception of Ortegel’s Title IX claim against
Virginia Tech.

Ortegel v. Virginia Polytechnic Institute & State University

THE ISSUE    Can a student subject to sanctions in a disciplinary process as a result of sexual assault and harassment allegations move forward with his claim against the school that he was discriminated against in violation of Title IX on the basis of his being a man?

Answer      Yes (U.S. District Court for the Western District of Virginia)

Attorneys  Jason C. Greaves, Binnall Law Group, Alexandria (plaintiff)
Kristina J. Hartman, Virginia Polytechnic Institute and State University, Blacksburg (defendants)

Case links

• Ortegel v. Virginia
• Ortegel v. Virginia Polytechnic Institute &amp