Whether the Fifth Circuit incorrectly implemented Title IX by imposing a burden on the plaintiff to prove the exclusion from educational programming was clearly unreasonable, and holding that a non-discriminatory reason allows a court to find the exclusion not clearly unreasonable as a matter of law

QUESTION PRESENTED Congress passed Title IX of the Education Amendments of 1972 (“Title IX”) to provide a remedy to students attending publicly funded educational institutions who suffer gender-motivated discrimination in the form of exclusion from, participation in, denial of the benefits of, or discrimination under any education program or activity. In conflict with the defined framework of a Title IX enforcement claim that uniformly has been approved by each of the First, Second, Sixth, Seventh and Eleventh Circuits, the Fifth Circuit becomes the first court of appeals to hold that where a student suffers disciplinary action that indisputably includes an exclusion of the student from educational programming, a Title IX enforcement action is unavailable if the claimant does not prove the exclusion complained of was “clearly unreasonable in light of the known circumstances.” The Fifth Circuit compounded its conflict with the other Circuits by holding that a court is authorized to determine that an exclusion from educational programming as a disciplinary sanction, is “not clearly unreasonable as a matter of law” because the university has offered reasons for it other than sex or gender discrimination. The question presented is whether the Fifth Circuit incorrectly implemented Title IX in a case arising from university discipline by imposing upon a Title IX plaintiff a burden to prove the exclusion from educational programming was clearly unreasonable in light of the known circumstances; and, holding that a non-discriminatory reason for the exclusion of a student from educational programming allows a court to find the u exclusion not clearly unreasonable as a matter of law, thereby exempting the university from a Title IX claim exposure.