Unequal Discipline

Every student facing discipline knows someone who did roughly the same thing and got less. That instinct is often right, and turning it into a claim is harder than it sounds, because the law is particular about which comparison counts.

The whole case is the comparator. Get it right and the file becomes very difficult for the school to explain. Get it wrong and the argument is dismissed as anecdote.

The two theories

Courts recognize two routes when a disciplinary outcome is challenged as discriminatory, drawn from Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994) and used across jurisdictions since:

Erroneous outcome — the finding itself was wrong, and bias explains why. This requires casting articulable doubt on the accuracy of the outcome and then connecting that to a protected characteristic.

Selective enforcement — whether or not the finding was right, the decision to bring the case or the severity of the penalty was affected by a protected characteristic. This is the comparator theory, and it is usually the more practical of the two because it does not require re-litigating what happened.

Courts have worked through both in the university setting in decisions including Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019); Doe v. New York University, 438 F. Supp. 3d 172 (S.D.N.Y. 2020); Doe v. Ohio State University, 239 F. Supp. 3d 1048 (S.D. Ohio 2017); and Doe v. Dordt University, 616 F. Supp. 3d 872 (N.D. Iowa 2022).

The mistake almost everyone makes

The person who complained about you is not a comparator.

Students reason: we were both there, we both did things, they were not charged and I was. Courts reject this consistently. The complainant and the respondent are not similarly situated, because they occupied different positions in the same proceeding. Building a case on that comparison wastes the claim.

The comparator you need is a different student, in a different matter, who faced a similar allegation and was treated better.

What makes a comparator similar enough

Not identical. Similar in the respects that matter to how the school made the decision:

• Similar conduct alleged, under the same policy provision or a comparable one.
• The same or a comparable decision-maker — the same panel, the same office, the same dean. A different school within the university weakens it considerably.
• A similar prior record. A first offense compared against a third is not a comparison; the school will say so and be right.
• A similar timeframe, under the same version of the policy.
• Comparable aggravating and mitigating circumstances — and be honest about these, because the school will be.

Then the difference: the outcome, or the decision to charge at all, and the protected characteristic that separates you.

How to get the evidence

This is the practical obstacle, because you cannot see other students’ files.

Aggregate data. Ask the institution, in writing, for outcome data by charge type and by protected characteristic for a stated period, in aggregate and de-identified. Many institutions hold this and some publish parts of it. At a public university, a public records request is available for records that are not protected education records; de-identified aggregate statistics generally are not.

The published record. Annual security reports, conduct office statistics, accreditation self-studies, campus reporting, and the institution’s own equity reviews.

What you already know. Named matters that were public on campus, in the student press, or in a previous proceeding you participated in.

The policy itself. A published sanctioning range or rubric is a comparator of a kind: a sanction outside the published range needs an explanation, and the absence of one is itself the point.

Discovery. If it reaches litigation, comparator files are obtainable in redacted form. That is a reason to plead the theory precisely rather than generally.

Where the disparity shows up before the sanction

Unequal treatment is usually visible earlier than the outcome, and the earlier evidence is often better:

• Whether a case was opened at all from a comparable report.
• Whether an interim measure was imposed — a suspension, a no-contact order, a housing move — and on whom.
• How the investigation was conducted — witnesses interviewed or not, evidence sought or not, how long it took.
• The charge selected for the same conduct.
• The language used about you in the file, compared with the language used about others.

Race, and the other protected characteristics

The framework is the same whichever characteristic is in play; only the statute changes. Race, color and national origin run under Title VI. Sex runs under Title IX. Disability runs under Section 504 and the ADA, and there the analysis carries an extra element that is easy to miss: where the conduct is connected to a disability the school knew about, the question is not only whether you were treated differently but whether the school considered accommodation before treating behavior as misconduct.

At a public institution the Equal Protection Clause supplies a parallel route through 42 U.S.C. § 1983.

What to do now

• Raise it in the conduct process, not after. Ask in writing what sanction the published range provides for this charge, and what comparable matters have produced.
• Ask for the sanctioning guidelines by name. Many institutions have one and few volunteer it.
• Send a preservation request covering comparator matters, in general terms, before records rotate off.
• Write down what you know about comparable matters, with dates and sources, while you still remember them.
• Keep the protected-characteristic evidence separate from the merits. They are different arguments and blending them weakens both.

Common questions

Someone else did the same thing and got a warning. Is that enough?

Only if they are genuinely similarly situated — comparable conduct, comparable decision-maker, comparable record. Then it is powerful.

Can I use the person who reported me as the comparison?

No. Courts do not treat the complainant and the respondent as similarly situated.

How do I find out what happened to other students?

Aggregate and de-identified data, published reports, the sanctioning guidelines, and public records at a public institution. Individual files usually come only through discovery.

Does statistical evidence work?

It supports a pattern and rarely carries a case alone. It is most effective alongside one or two strong individual comparators.

What if my conduct was connected to a disability?

Then there is a second argument: whether the school considered accommodation before treating the behavior as misconduct. Raise it separately and in writing.