Kozinski: Bad Facts Make Bad Law. No Facts Make Worse Law.

The Ninth Circuit Court of Appeals' recently-adopted criteria for Title IX retaliation cases remains intact. Wednesday, the court denied en banc rehearing in Emeldi v. University of Oregon.

Chief Judge Alex Kozinski is not happy about the decision, which he called "bad law."

Monica Emeldi, formerly a special education doctoral candidate at the University of Oregon, complained to the University in 2007 about the lack of adequate support for female PhD candidates. The University claimed that only the Dean of the College of Education knew about her complaint; Emeldi said it was "common knowledge in the College of Education" that she was dissatisfied with the Department's level of support for women.

Emeldi believes that the University retaliated against her. Weeks after she complained to the administration that her dissertation chair, Robert Horner, was distant, inaccessible and gave male students perks, Horner withdrew as her adviser. After getting turned down by 15 faculty members, Emeldi eventually abandoned the PhD program because she couldn't find another dissertation chair.

Then, she sued for Title IX retaliation.

The district court granted summary judgment to the University, finding that Emeldi didn't engage in protected activity and that she offered no evidence showing that the University's adverse actions were causally-related to her supposedly-protected activity.

The Ninth Circuit Court of Appeals reversed that decision in March, permitting Emeldi to pursue her retaliation claim based on circumstantial evidence.

Emeldi's case was the first time the Ninth Circuit Court of Appeals addressed what a plaintiff must prove to prevail on a retaliation claim under Title IX. The Ninth Circuit criteria follows the Title VII retaliation criteria. A plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, that he or she suffered an adverse action, and that there was a causal link between the two. (A plaintiff only needs make a minimal threshold showing of retaliation to make a prima facie case.)

The University asked the Ninth Circuit to reconsider that decision en banc. Wednesday, the court denied that request.

The decision was not unanimous.

In a scathing dissental, Chief Judge Alex Kozinski detailed his concerns about letting the case move forward. He wrote:

This opinion undermines the pleading framework for Title IX and Title VII and erodes the well-established standards for summary judgment. Worse still, it jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. Plaintiffs will now cite Emeldi in droves to fight off summary judgment: We may not have any evidence, but it's enough under Emeldi.

Six other judges joined Judge Kozinski's dissental.

Related Resources:

• Emeldi v. University of Oregon (Ninth Circuit Court of Appeals)
• Basketball Players Can Bring Gender Discrimination Lawsuit (FindLaw's Seventh Circuit Blog)
• Kozinski Says Ruling Will Chill Academic Freedom (Wall Street Journal)