Whether Title VII's mixed-motive analysis applies to Title IX claims when a decision-maker explicitly admits to using 'sex' as a factor in determining credibility, and whether procedural irregularities can establish a prima facie case of sex discrimination

A university decision-maker admitted using ‘sex ’ as one of the three factors in evaluating an accused student ’s credibility, resulting in expulsion. The Eighth Circuit granted summary judgment on Title IX without applying the mixed-motive or burden-shifting frameworks, conflicting with the Tenth and Second Circuits, which used Title VII standards {Doe v. Univ. of Denver, 1 F.4th 822, 829 (10th Cir. 2021); Doe v. Co lumbia Univ., 831 F.3d 46,56 (2d Cir. 2016)). In grant ing summary judgment, the panel again focused on undefined “context, ” as in Smothers v. Rowley Masonic Assisted Living Cmty., 63 F.4th 721, 728 (8th Cir. 2023), conflicting with holdings that “some evidence ” of sex as a motivating factor suffices for a prima facie case (Doe v. Univ. of Denver, 1 F.4th 822, 836 (10th Cir. 2021); Doe v. William Marsh Rice Univ., 67 F.4th 702, 726 (5th Cir. 2023)), and diverging from the Sec ond Circuit ’s emphasis on the jury evaluating context (Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009)). This case also raises due process requirements in university disciplinary proceedings. The Sixth Circuit in Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018), and the U.S. Department of Education ’s 2020 Title IX reg ulations, relying on Mathews v. Eldridge, 424 U.S. 319 (1976), require cross-examination through an advisor. Here, the adjudicator exercised discretion by refusing to ask material questions requested by the petitioner, falsely reported asking all questions, applied dispar ate standards, and found the petitioner responsible for the conduct of a separate charge without notice. Un clear procedural requirements jeopardize nearly 19 million students ’ rights. The questions presented are: 1. Whether Title VII ’s mixed-motive analysis ap plies to Title IX claims when a decision-maker 11 explicitly admits to using ‘sex ’ as one of the three factors in determining credibility; or, if direct evidence is inapplicable, whether Title VII ’s McDonnell Douglas framework should apply to Title IX claims, especially where the university does not assert that it would have reached the same decision absent consideration of sex. 2. Whether some evidence of procedural irregular ities, combined with external pressure, can es tablish a prima facie case of sex discrimination. 3. Does the Due Process Clause of the Fourteenth Amendment permit an accused university stu dent to cross-examine adverse witnesses through their advisor, and did the adjudicator ’s conduct here deprive the petitioner of funda mental fairness guaranteed under procedural due process? xl