Can a male student held responsible by a university for an alleged sexual assault successfully make the case that his fate was the result of sex discrimination against him?
It’s not a decision on the merits — the court did not say the student was a victim of gender bias. It simply ruled that he made a sufficiently plausible case that he may now go forward with a claim the district court judge in the case called “overwrought” and tossed out.
This surprising ruling could have major repercussions in other cases, most prominently the suit brought by former Yale University basketball player Jack Montague, who was expelled from Yale just shy of graduation for sexual misconduct. Montague is making the same argument, among others, in the same circuit.
“The courts are beginning to realize that they should not give the back of their hands to these kinds of cases,” Montague’s lawyer, Max Stern, told the Post. Will the ruling help his client’s claim? “Yes.”
To understand how the Columbia athlete and his lawyers succeeded in getting this far, farther than anyone else who has attempted such an argument, requires a little recent history.
“Co-eds rip Columbia over athlete rape probe,” screamed the New York Post headline in December, 2013.
“Columbia University has a sex problem,” the paper said. “A college jock accused of raping two co-eds and groping a third still roams the campus after the Ivy failed to take prompt action.”
The following month, Columbia’s student magazine, the Blue & White, put out its own two-part exposé on the plight of assault survivors based on interviews with 10 Columbia and Barnard students “who suffered sexual violence or harassment on campus.” It was scathing on the university’s handling of sexual assault cases, and described students feeling “betrayed by compromised standards of professionalism, promptness and diligence.”
The student senate issued an open letter, the New York Times reported, “citing a widespread ‘lack of confidence in Columbia’s approach to handling allegations.'”
The pressure was on.
Indeed, the pressure had been on all universities from the federal government itself, which, invoking Title IX of the Education Amendments of 1972 and the threat of cutting off federal funding, had in April 2011 clarified guidance meant to enforce the “schools’ obligations to respond to sexual harassment and sexual violence.”
And it was intense and unrelenting pressure, prompting Columbia’s president, Lee Bollinger, to promise an overhauled system, with an eye toward greater transparency.
As all of this was happening, the athlete at Columbia known in court documents only as John Doe confronted his own crisis.
In September of 2013, according to court documents, he received notice from Columbia’s assistant director for gender-based and sexual misconduct that a woman with whom he had had sex four months earlier, consensual sex by his account, had filed a complaint against him of sexual assault, alleging that he had “coercively pressured her over a period of weeks to have sex with him” before they actually did.
The accusation took “John Doe” by surprise, his lawyers said. The woman, identified only as Jane Doe, had taken a long walk with him early one morning, a break from studying, and discussed “hooking up,” according to him. She took him to her dorm suite, he said, retrieved a condom, undressed and the two had sex.
Her version of events, it must be noted, remains confidential. The fact that his version was recited by the court does not mean the judges accept it as true. “We recognize,” the panel stated, “that the facts may appear in a very different light” once Columbia has an opportunity to contest them, which, as a result of the ruling, it will soon have to do.
In March 2014, after a series of interrogations and a failed appeal to a university panel, John Doe was suspended from Columbia for a year, effectively a year and a half as he did not get credit for the term he was in.
The processes used by universities, and mandated by the Department of Education’s Office of Civil Rights, are nothing like a criminal proceeding. Among other things, the standard of proof for a finding of “responsibility” is not “beyond a reasonable doubt” but a “preponderance of evidence,” a 50.1 percent chance that the accused did what he was accused of, the standard applied to most civil suits by the courts. The approach has been intensely controversial.
In his view and that of his lawyer, the university’s investigation of the woman’s charges was deeply flawed. Officials, he alleged, had been “hostile” to him, rather than neutral, and had not followed their own rules designed to ensure fairness. Among other things, he said the woman investigating his case did not interview witnesses he believed would support his case. Officials failed to advise him that he was entitled to assistance in defending himself and to a student representative, albeit not a lawyer, to help him out.
For a fuller list of grievances, the opinion is here.
Private universities such as Columbia and Yale are not required to observe due process guarantees applied to governments. But they do have to obey Title IX, which bars gender discrimination. John Doe sued under Title IX.
And that’s where the pressure on Columbia, the newspaper articles, the criticism from students, came into play.
In his lawsuit, John Doe alleged that the officials presiding over his case succumbed to fear, pressure and public embarrassment.
The complaint, to quote the appeals court, alleged that “the University’s decision-makers … seeking to protect the University from criticism both among students and the public to the effect that it was not taking women’s sexual assault complaints seriously, took a pro-female, sex-biased stance on Jane Doe’s allegations, leading them to decide against him, incorrectly and contrary to the weight of evidence.”
In other words, they discriminated against him because he was a man.
While the lower court rejected that argument and threw the case out, the appeals panel reinstated it, stressing that while it was not saying John Doe was the victim of discrimination, or endorsing his factual account of the events, his argument was sufficiently plausible that it should be heard, rather than tossed, by the lower court.
John Doe’s complaint “pleads specific facts giving at least the necessary minimal support to a plausible inference of sex discrimination,” wrote Judge Pierre N. Leval for the three judge panel. It noted that the official who investigated Jane Doe’s complaint “had suffered personal criticism in the student body for her role in prior cases in which the University was seen as not taking seriously the complaints of female students. … It is plausible that she was motivated to refute those criticisms by siding with the accusing female and against the accused male.”
As for the panel that reviewed John Doe’s case and imposed the suspension, the court added: “There is nothing implausible or unreasonable about the Complaint’s suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.”
In an important footnote, the court went out of its way to reject the lower court’s finding that “fear of negative publicity or of Title IX liability” are somehow lawful, nondiscriminatory motivations.
“A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart,” wrote Leval, “but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a police of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”
A spokesman for Columbia declined to comment on pending litigation.
But the ruling is likely to be a source of great concern among women’s rights activists, who have spent years trying to get universities to act more aggressively in sexual assault cases.
“The idea that vigilance to victims is a ‘pro woman bias’ potentially amounting to discrimination is a concerning perspective,” said Jamie Abrams, of the University of Louisville Brandeis School of Law. “Any defendants should be entitled to due process, without question. It is important that universities continue to recognize their obligations to investigate and act fairly such that this decision will not temper or stagnate the critical cultural and institutional changes that were underway.”
Correction: An earlier version of this story said the Department of Education imposed new requirements in 2011. It clarified prior guidance. While universities are not required to allow lawyers, if they do, both sides must be allowed to have them.