Hall at the Univeristy of Denver

University Hall at the University of Denver in Denver.

A student expelled from the University of Denver after a sexual assault investigation had his lawsuit against the school reinstated on Tuesday, after the federal appeals court based in Denver determined he had plausibly alleged an anti-male bias in the university’s investigation of the incident.

The decision in the case of “John Doe,” as the former student is identified, comes one year after the U.S. Court of Appeals for the 10th Circuit dismissed a similar lawsuit from a male student who also claimed DU’s investigatory process was biased against men and toward women. At the time, a three-judge appellate panel decided that a process generally favoring victims who were largely women did not necessarily equate to discrimination against men.

By contrast, the ruling in the current case hinged on specific allegations of the university's uneven treatment of Doe and his female accuser during the inquiry.

“While a one-sided investigation, standing alone, might only raise a reasonable inference of anti-complainant bias,” wrote Chief Judge Timothy M. Tymkovich in the 10th Circuit's June 15 opinion, “where there is a one-sided investigation plus some evidence that sex may have played a role in a school’s disciplinary decision, it should be up to a jury to determine whether the school’s bias was based on a protected trait.”

Chloe M. Neely, an attorney with The Fierberg National Law Group who represents victims of school-related violence, said the Doe decision signifies a shift in how courts are beginning to handle cases under Title IX, the federal civil rights law that forbids discrimination in educational programs on the basis of sex.

"Over the past 10 years, what we've seen is that the pendulum has swung from pretty far in one direction to concern about primarily male students being railroaded," she said. "It's definitely a new way of thinking about these cases. It's sort of one of the first ones that has made it to this stage."

According to the court's narrative, Doe enrolled at DU as an undergraduate student in 2015, and was romantically involved with — but not formally dating — another first-year student. One Friday night, Doe and the female student, identified as “Jane Roe,” were both intoxicated in her dorm room and began making out.

According to Doe, the two had consensual sex the following morning. At some point during the encounter, Roe allegedly left suddenly, then returned to try and talk about their relationship. Doe, confused, said he then decided to go to his own dorm.

By contrast, Roe said she woke up to Doe fondling her, and he initiated the intercourse. When she asked him to stop, he did not. Although Roe said she felt she could not leave the room, she did not physically resist Doe. She then got up, went to the bathroom, and when she returned the two of them argued until Doe left.

Later that weekend, Roe called Doe and told him, “you didn’t hurt me” and that she “willingly gave it to” him, referring to her virginity. Both individuals agreed she made those statements, according to documents.

Subsequently, Roe became concerned about bruises she had, and Doe responded he did not know where they came from. One of Roe’s friends suggested she see a Sexual Assault Nurse Examiner for a so-called “rape kit,” which she did. When Roe spoke to Doe again, she said “someone else told me” that what happened to her was sexual assault. Doe reportedly responded that “there’s a difference between regret and assault.”

Eventually, Roe found out that Doe had told three other students about the encounter, which prompted her to report it to the school on March 24, 2016. Investigators interviewed Doe, Roe and 11 other people with whom Roe discussed the alleged assault. Although the university took the statement of Doe's resident adviser, it did not interview the five people Doe spoke with.

There were other perceived flaws with the investigation. Only after DU issued its preliminary report did investigators talk to one of Doe’s witnesses, his therapist. The therapist, in turn, complained that the interviewer had “made up her mind already.” Doe also raised concerns that Roe withheld part of the SANE nurse’s exam pertaining to Roe’s injuries.

Ultimately, the investigators’ final report in August 2016 found Doe more likely than not committed sexual assault, and a committee expelled him.

Doe sued DU alleging a violation of his rights under Title IX. A trial court dismissed the lawsuit on the grounds that Doe had not met his burden of showing his sex motivated DU’s investigation and expulsion. U.S. District Court Chief Judge Philip A. Brimmer determined there were reasonable explanations for all of Doe’s complaints about the process. He was also unpersuaded by Doe’s contention that all of the male students who were found guilty of non-consensual sexual contact in a two-year period were expelled, compared with zero women.

“If anything, this fact demonstrates the seriousness of the misconduct, not any bias against male respondents,” Brimmer wrote.

However, the 10th Circuit’s panel concluded a reasonable jury could find otherwise.

“We agree the Final Report that the disciplinary committee reviewed before expelling John, when viewed in the light most favorable to John, can be construed as ignoring, downplaying, and misrepresenting inconsistencies in Jane’s account of the alleged assault,” Tymkovich wrote.

In reversing Brimmer's decision, the judges acknowledged the March 2020 ruling in the previous John Doe case, which Tymkovich deemed “Doe I.” The 10th Circuit in that case found that general evidence showing most victims at DU were women while most perpetrators were men was not sufficient to register as discrimination. The John Doe in the current case, however, had made specific allegations about his investigation that went beyond a recitation of statistics.

“Here, John points out that investigators interviewed eleven witnesses proposed by Jane but initially refused to interview all five witnesses proffered by John,” Tymkovich wrote, adding that DU’s investigators did not mention the numerous inconsistencies in Roe’s story. Notably, Roe only began telling witnesses the sexual encounter was non-consensual after she saw Doe talking to another woman at a party.

Colorado law already requires that sexual misconduct investigations be fair, impartial and prompt. Multiple Title IX attorneys not involved with the Doe lawsuit agreed DU had performed a subpar investigation, if the allegations were true. They emphasized it was paramount to treat both alleged victims and perpetrators fairly in the investigation, regardless of whether the perpetrator was male, female or the couple involved was LGBTQ. 

In 2011, under the Obama administration, the U.S. Department of Education's Office for Civil Rights issued a letter outlining educational institutions' responsibility to investigate sexual violence. The office informed colleges that they should use a "preponderance of the evidence" standard against perpetrators — meaning that sexual misconduct more likely than not occurred — instead of a higher burden of proof.

"I've seen this time and time and time again where there is kind of a presumption that the male respondent did it, and they've got to prove they didn't. And that's not how it's supposed to work," said Felice Duffy, a former federal prosecutor in Connecticut who now represents victims and accused students in Title IX cases.

The 10th Circuit panel relied upon a similar case involving Purdue University from the Chicago-based Seventh Circuit. In 2019, a three-member panel reinstated a John Doe lawsuit in large part because the Title IX coordinator at Purdue had apparently found the victim credible without ever hearing testimony from her. The author of the panel's ruling was now-U.S. Supreme Court Justice Amy Coney Barrett.

Adrienne Levy, a New York-based lawyer representing Doe in the current University of Denver case, said she believed her client's appeal was successful partly because of the amount of evidence presented, as well as how precisely it suggested a sex-based bias.

"The statistics presented here did not represent a simple gender disparity in who is a complainant and who is a respondent," Levy said. "They showed disparities in how DU handled complaints brought by women versus complaints brought by men, as well as disparities in how it treated complaints against women versus complaints against men."

During oral arguments before the 10th Circuit panel, the university's attorney maintained there were numerous nondiscriminatory reasons for why some Title IX investigations may go forward and not others, including the wishes of the victim or insufficient information.

“The University of Denver does not comment about active litigation,” a DU spokesperson told Colorado Politics. “It is important to note that the appellate court has not made a ruling on the merits of the case, but rather the previous ruling by the trial court.”

Although the current Doe case was already filed at the time the 10th Circuit rejected the Doe I appeal against the University of Denver in March 2020, the prior panel also expressed alarm about how DU was treating accused students in its Title IX investigations. The appellate judges in that instance found 10 questionable actions that made the inquiry seem "more like a railroading."

"[S]tereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies," warned the late Judge Monroe G. McKay in the Doe I opinion.

The case is Doe v. University of Denver et al.

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