A federal court has handed down yet another decision involving claims of anti-male bias in university sexual misconduct investigations, the latest instance of judges in Colorado grappling with the question of whether overwhelmingly-male perpetrators are being railroaded during campus inquiries due to their sex.
On Tuesday, U.S. Magistrate Judge Michael E. Hegarty sided with the University of Northern Colorado in finding that a student had not plausibly alleged a violation of Title IX, the federal civil rights law that prevents discrimination in education on the basis of sex. However, Hegarty noted an investigatory process may be tilted against accused students, known as respondents, without being gender-discriminatory.
“As troubling as it may be that UNC is apparently willing to embrace the explanation of anti-respondent bias, that bias is neither illegal nor discriminatory when it comes to Title IX’s prohibition on gender discrimination,” he wrote in a July 6 order.
Increasingly, courts are ruling on lawsuits from college students disciplined for committing sexual misconduct who then use Title IX as the basis of their discrimination claims. A forthcoming article in the UC Davis Law Review argues that Title IX has become “a more powerful tool for men accused of sexual harassment than for victims.”
“I think that universities should be aware of the anti-male bias possibility in Title IX cases for a couple of reasons,” said Elizabeth Kaufer Busch, director of American Studies at Christopher Newport University. “First, women now outnumber males, even at the most elite universities. Second, there are over 700 due process lawsuits, many of which are alleging anti-male bias.”
Previously, the federal appeals court based in Colorado issued a pair of rulings to clarify the level of detail that allegations of anti-male bias need in order to support a viable Title IX claim. Two former students at the University of Denver, both identified as John Doe in their respective lawsuits, pointed to the fact that respondents were nearly all male and victims were nearly all female. Moreover, DU allegedly took disciplinary action against male respondents whose victims were female, but did not treat cases with female perpetrators similarly.
In the first John Doe case, a three-judge panel on the U.S. Court of Appeals for the 10th Circuit agreed in March 2020 that statistics alone did not support a Title IX claim. There could be a non-discriminatory explanation for the disparity, namely that victims of sexual assault are likelier to be female.
But in June of this year, another panel reinstated the second John Doe lawsuit because the student had also made specific allegations about his investigation that could amount to bias on the basis of his sex. Namely, DU’s investigators allegedly did not interview any of Doe’s witnesses, while interviewing all of his female accuser’s.
Chief Judge Timothy M. Tymkovich, in the June opinion, explained that “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 or merely a non-protected trait that breaks down across gender lines.”
The lawsuit against UNC that the magistrate judge dismissed this week involved Torrence Brown-Smith, the president of the Black Student Union, who was scheduled to graduate in May 2020. Three months beforehand, he and another student, identified as Jane Doe, hung out together after a BSU meeting. Leaving a coffee shop, they reportedly returned to Brown-Smith’s residence to watch a movie.
At one point, according to his complaint, the two began making out and Brown-Smith made more overtly sexual contact. Doe told him she did not want to progress further, and Brown-Smith halted his advances.
Doe told investigators, by contrast, she had experienced "fight, flight, or freeze, and my body chose to freeze throughout the incident."
The following day, Doe described to a friend that the encounter was consensual, but "everything hurts now." A few days later, she reported to the school that Brown-Smith had made non-consensual sexual contact with her.
UNC informed Brown-Smith it had begun a Title IX investigation, and the school released a draft report in March. On April 24, he attempted to schedule a meeting with a hearing officer, but the school allegedly did not respond until April 27, the day of the scheduled meeting. Because it was a requirement for Brown-Smith to submit a list of his witnesses 24 hours prior to the meeting, the late response from the university made it impossible to do so.
On May 1, the university sent Brown-Smith a letter finding him responsible for violating the code of conduct, and suspended him until 2022. The school thus delayed his graduation and he received a permanent note of misconduct on his academic record.
Brown-Smith filed a federal lawsuit against the school in November 2020, seeking to overturn the outcome of the misconduct investigation, clear the suspension from his record, destroy any record of the complaint and be readmitted to UNC.
In large part, Brown-Smith blamed a 2011 "Dear Colleague" letter from the U.S. Department of Education's Office for Civil Rights for supposedly pressuring universities to label more students as "rapists" in the name of protecting victims of campus sexual assault.
To "avoid a governmental investigation and potential loss of federal funds, UNC enforced its policies and procedures in a way that unfairly disadvantaged male accused students in order to conform to the mandates of the Dear Colleague Letter," Brown-Smith wrote in his complaint.
UNC countered that Brown-Smith had failed to state a claim, and may have misunderstood how the investigative process worked.
"Plaintiff’s failure to understand his responsibilities and obligations does not plausibly suggest gender bias," the Colorado Attorney General's Office wrote in asking for dismissal of the lawsuit.
The magistrate judge determined the university itself had immunity, and Brown-Smith needed to sue a particular person to gain the types of scholastic relief he sought. Hegarty also concluded that, in the absence of evidence showing differential treatment of male and female students, the university acted reasonably in disciplining Brown-Smith.
"It is clear that there was at least some evidence which UNC relied on to make its decision, and so the Court cannot infer bias (specifically, anti-male bias) from its decision," he wrote.
Although Hegarty granted UNC’s motion to dismiss the complaint, he permitted Brown-Smith to file an amended set of allegations featuring more robust statistics illustrating gender disparities or highlighting specific evidence that the university’s investigation excluded in his case.
An attorney for Brown-Smith declined to comment, but indicated they plan to pursue an amended complaint. A UNC spokesperson said the school stands by its investigatory process and the outcome of the inquiry.
The case is Brown-Smith v. Board of Trustees.