Men face high bar to claim discrimination by campus sex assault tribunals

April 22, 2015

On Tuesday, U.S. District Judge Jesse Furman of Manhattan dismissed an anonymous male student’s gender discrimination case against Columbia University and its board of trustees. The student, who was suspended for three semesters after a campus tribunal determined he had engaged in non-consensual sex with an anonymous female student, had contended that Columbia’s investigation and prosecution of the incident violated Title IX, which prohibits universities from gender discrimination. The John Doe student, who said his accuser consented to their encounter in her dorm room bathroom and even provided the condom they used, alleged he was treated unfairly because of Columbia’s atmosphere of heightened sensitivity to women complaining of sexual assault by men.

Judge Furman determined, however, that even if Columbia’s tribunal reached the wrong conclusion in John Doe’s case and even if Doe is right that Columbia’s sexual misconduct disciplinary proceedings have a different impact on men than women, the student didn’t provide enough plausible allegations that Columbia discriminated against him because he is a man. So under the tough pleading standards the U.S. Supreme Court established in Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal in 2009, Furman said, John Doe’s case has to be dismissed.

According to Furman, the same fate has befallen almost all of the other recent cases by men claiming Title IX gender discrimination in campus sex misconduct proceedings. The plaintiff in only one case, Wells v. Xavier University, managed to persuade a federal judge that he adequately pleaded that his tribunal reached the wrong outcome because he is a man. Furman said he reviewed the Wells case – which was cited in John Doe’s brief opposing dismissal – and decided that U.S. District Judge S. Arthur Spiegel of Dayton, Ohio, didn’t properly evaluate the complaint under the Twombly and Iqbal pleading standard. John Doe’s lawyers at Nesenoff & Miltenberg had also relied on 1994 precedent from the 2nd U.S. Circuit Court of Appeals in Yusuf v. Vassar. But the judge agreed with Columbia’s lawyers at Wilmer Cutler Pickering Hale and Dorr, who argued in their motion to dismiss that the pleading standard the 2nd Circuit used in the Yusuf case no longer applies because of Twombly and Iqbal.

As Furman pointed out (and as the Wall Street Journal and Slate have both recently reported), there is “a growing phenomenon” of suits by men who have been disciplined for sexual misconduct against women in university proceedings. Students can’t bring constitutional due process claims against private schools, so suits against private institutions are likely to allege violations of Title IX.

And based on Judge Furman’s decision, those suits have to figure out how to deal with a quirk of Title IX: Unlike Title VII, the equal employment opportunity provision, Title IX (as it has been interpreted by courts) does not permit plaintiffs to establish discrimination by showing that policies have a “disparate impact” on certain groups. It’s not sufficient, Furman said, to claim that Columbia’s sexual misconduct proceedings disproportionately target male students. Plaintiffs, whether male or female, have to “allege facts sufficient to give rise to an inference that the school intentionally discriminated  because of his or her sex,” Furman said.

That doesn’t necessarily mean that men in these Title IX suits have to show that women accused of sexual assault were treated differently than they were in campus tribunals, Furman said. But they do have to raise plausible allegations that the proceedings discriminate against men, perhaps by providing data showing that women are accused of sexual misconduct less often than men alongside statistics showing the gender disparity disappears in other misconduct proceedings.

Judge Furman dismissed the Doe case based only on the complaint, which meant, as he said, that he did not have “to wade into the larger public debates about how colleges and universities adjudicate (and, indeed, whether they even should adjudicate) allegations of sexual misconduct on campus (or) to revisit Columbia’s adjudication by weighing plaintiff’s account of what happened against the account of his accuser.” But as his reference to a March 31 decision by his Manhattan federal court colleague Ronnie Abrams in Yu v. Vassar makes clear, even if men manage to survive dismissal, they still have to come up with evidence that they were treated unfairly because they are men, not just that the proceeding was unfair.

Judge Abrams granted Vassar summary judgment on Title IX claims by a student who cited many of the same supposed procedural problems as John Doe in the Columbia case. She laboriously recited the evidence that had emerged in discovery, but ultimately concluded the male student, Peter Yu, hadn’t come up with proof that gender bias was responsible for any of the alleged flaws in the proceeding, such as explicitly discriminatory statements from members of the tribunal or Vassar officials or statistical evidence showing that men always lose these cases at Vassar, the judge said.

I left messages for John Doe counsel Andrew Miltenberg and Columbia counsel Alan Schoenfeld but didn’t hear back.

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