Ralph L. Carr Colorado Judicial Center

The Ralph LCarr Colorado Judicial Center in downtown Denver houses the Colorado Supreme Court and Court of Appeals.

On March 11, 2020, in a courtroom in downtown Denver, David M. Ebel rattled off the episodes of harassment an East High School student said she had to endure after reporting that a classmate raped her.

Others made "rape jokes." One called her a "dirty slut." A friend of the perpetrator's allegedly told her, "We took a vote and we all agreed that you’ll lose your virginity first.”

Ebel, a senior judge on the U.S. Court of Appeals for the 10th Circuit, pressed the attorney for Denver Public Schools about what, exactly, school officials did to address the bullying once they learned about it.

"With the counselors, she was talking about being continually harassed. Do you agree that if she was telling the counselors she was continuing to face these problems and was anxious and having psychological problems, that was the same as notifying the school of the problem?" Ebel asked.

"No, I do not agree with that," responded attorney Holly Ortiz. "I think there's caselaw that says a counselor is not an appropriate person."

What caselaw? Ebel demanded.

Ortiz was not able to reference anything off the top of her head, but said there had been court cases discussing the appropriate people in a school to talk to.

"The appropriate people told her to go to the counselor!" Ebel exclaimed.

"You are correct," conceded Ortiz.

That case of "Jane Doe" against Denver Public Schools is one of nearly 70 lawsuits brought in Colorado's federal trial court over the last three decades that made a legal claim under Title IX — the law prohibiting discrimination on the basis of sex in any educational program receiving federal funding.

One clear beneficiary of Title IX is athletic opportunities for women and girls: While the 1971-1972 school year saw just 294,000 female high school athletes nationwide compared to 3.6 million male athletes, the number of female high school athletes in the 2018-2019 school year had risen to 3.4 million.

But Title IX's sweeping mandate also enables people to claim violations of their rights in a variety of scenarios that implicate, to varying degrees, a person's sex. A transgender student at the University of Colorado alleged her termination after 300 hours of internship work was the result of her complaints of discrimination. A University of Denver law professor labeled as discrimination the gender-related allegations against him and an academic dean's statement that she did not "want to see white men teaching anymore." A high school basketball coach in Basalt claimed unequal treatment when she was terminated for a drunk driving arrest, even though she knew of one other male coach — her husband — who faced no punishment after his own DUI.

By far, most Title IX lawsuits fall into one of two categories: victims of assault or harassment, usually female, who claim schools were deliberately indifferent to their reports. More recently, accused students, typically male, argue they were railroaded through investigations with little procedural fairness.

"The consequences can affect you throughout the course of your life," said Igor Raykin, an attorney in the Jane Doe case who represents victims and alleged preparators, also known as claimants and respondents. "I will tell you that defending people who are accused of Title IX violations at the postsecondary level is the hardest thing that I do in my job."

That is slowly changing. While the 10th Circuit's Jane Doe decision was notable for explaining schools could be liable for Title IX violations for failing to stop the harassment of victims, its ruling in the case of John Doe v. University of Denver last summer was just as beneficial to the accused.

The court effectively said of accused male students: If they have evidence that their school is treating females' complaints about males' differently than males' complaints about females, they have a Title IX case.

"It was the first time we've seen a court seem to understand what we were talking about," said Michael J. Mirabella, a lawyer on the John Doe case.

A head-scratching law

Unlike some other laws, Title IX as written is relatively straightforward.

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," it reads.

While the intent is to provide equitable treatment in education, the law itself is silent about what process is required to achieve that end. In other words, what is a Title IX investigation? Is it an academic inquiry? A criminal proceeding? Something else?

"I scratch my head," said Stuart Bernstein, a New York attorney with Nesenoff & Miltenberg who has been practicing on Title IX cases since 2017. "There's nothing there about being punitive in nature. It's now become a punitive situation. Some of these schools have taken it upon themselves to think that they take over and they're now law enforcement."

"Typically, universities will make statements that this is intended to be an educational process," added Tara J. Davis, who has brought Title IX cases with Bernstein in Colorado. "At the same time, when you're handing out sanctions that can derail someone's entire education — suspension or expulsion and impacting their chance of obtaining admission to graduate school or finding a job — that is punitive."

Enacted in 1972, the intent of Title IX is to remediate economic inequities between men and women by addressing educational inequities. At the time, the U.S. House of Representatives had amassed evidence of sex-based discrimination, and one House member recalled seeing admissions policies that outright excluded women from graduate and professional schools.

Initially, Title IX's effect on athletics took centerstage. Advocates argued that the law merely required men's and women's sports to share resources, instead of the traditional heavy tilt toward men. Opponents saw Title IX as providing opportunities for women at the expense of men.

"When me and my wife decide to have kids someday," one male athlete told 60 Minutes, "I pray that I'm going to have girls because that's the only way they're going to have an opportunity to do any college athletics."

In 1993, Colorado State University's women's varsity softball team won a major victory in federal court after challenging the termination of their program. U.S. District Court Judge Zita L. Weinshienk, the first female federal judge appointed in Colorado, found that women's activities had shouldered the greater share of cuts at CSU, that demand existed for greater women's opportunities, and that there was a 14% gap between the population of women at CSU and the percentage of female athletes.

"CSU may not continue to operate an intercollegiate athletic program that provides a disproportionate amount of participation opportunities to male athletes where there is no evidence of continuing program expansion or effective accommodation of the interests and abilities of its female students," Weinshienk said, reinstating the softball team.

69 cases in 30 years

A Colorado Politics analysis found at least 69 civil cases filed in Colorado's federal trial court between 1991 and 2021 raising claims pursuant to Title IX. While records are more opaque prior to 2003, it appears that none of those cases ever ended with a jury verdict. Typically, lawsuits reached settlements, were dismissed by both parties, or were subject to dismissal by the judge. In one instance, a judge dismissed the case in the middle of a jury trial at the request of the defendant, the University of Colorado.

Rules from the U.S. Department of Education prescribe how educational institutions should respond to allegations implicating Title IX. For example, schools should provide "equal opportunity" for both parties to present witnesses and other evidence. They must (for colleges) or may (for K-12) provide live hearings with cross-examination. And they need to provide "remedies" for students found responsible for violations.

Underlining all of those requirements is the principle that schools should not be deliberately indifferent to reports of assault or harassment — which, in practical terms, means "a response that is not clearly unreasonable in light of the known circumstances."

Attorney General Phil Weiser, a professor and dean of the University of Colorado Law School prior to his election, said he received annual training on equity and equal treatment. Now, his office defends many state institutions being sued for Title IX violations. Weiser said that equity in athletics was a "first-generation issue" for Title IX, and that schools, policymakers and courts have moved on to other sources of tension.

He acknowledged the potential for injustice that exists for both complainants and respondents.

"Due process, as it's commonly understood by lawyers, means you're given notice and an opportunity to be heard. So, if you manage to have some investigation where the alleged perpetrator was never talked to, and never given the opportunity to tell their side of the story, and you had a decision that adversely affected that person, that's a concern," he said.

"The other side is probably the one I've heard more commonly happen," he continued, speaking of victims. "They're subject to a sustained amount of harassment or even assault, and the question for the university is: Are you maintaining a safe environment where you're preventing these assaults from happening, you're addressing harassment?"

Deliberate indifference

While online court records did not reveal the exact nature of earlier cases, at least 32 of the 69 Colorado lawsuits involved plaintiffs who said they were the victims of harassment, assault or discrimination. Most were female and a handful were male, and none appeared to include a plaintiff with a different gender identity.

A minority of the cases involved claims without an element of sexual contact — for instance, a male student challenging his school's no-earrings policy for boys — but generally, the allegations charged schools with being deliberately indifferent under Title IX to the victims' experiences.

"Deliberate indifference is a pretty high standard," Raykin said. He added he has never seen a school change its Title IX procedures in response to a lawsuit. "And that's actually what's really disappointing," he said.

Among the cases lower court judges dismissed was the Jane Doe lawsuit against Denver Public Schools. The 14-year-old student reported her assault to school personnel, who in turn, allegedly failed to inform police or document it. School leaders then allegedly did not address the bullying from classmates that ensued following the rape. When Jane Doe's mother told the principal she was withdrawing her daughter from East High School because the situation had grown intolerable, he reportedly responded, “If it was that bad, she wouldn’t have been able to maintain those grades.”

Her perpetrator later pleaded guilty to sexual assault.

When the case made it to the 10th Circuit, a panel of appellate judges — all men appointed by Republican presidents — found Jane Doe had plausibly claimed school administrators failed to take her report seriously and had denied her equal access to educational opportunities after she was forced to stop attending in person.

"Yes, Ms. Doe maintained a 4.0 average. Apparently, she is quite bright. Does that mean that she would have derived no benefit from the instruction provided by her teachers?" wrote Judge Harris L Hartz.

The parties settled several months later.

Although the most common outcome for lawsuits is a settlement and the parties' own dismissal of the case, some judges who had the opportunity to weigh in on Title IX allegations gave a glimpse into how courts view the legal claims of sexual assault victims — and the defenses from school officials.

U.S. District Court Judge R. Brooke Jackson slammed the assistant principal of Glenwood Springs High School for claiming he had no idea that the harassment a female student endured after reporting her rape — which included being called a "crazy bitch" and a "pornstar" — was somehow related to sex.

Jackson said he could not accept an argument that would allow "these government officials [to] sit back and ignore every instance of such harmful conduct that was not reported to them in great detail."

In another case, however, three female students who were alleged victims of a Broomfield High School teacher claimed their school should have known that, as a student teacher several years prior, Travis Jon Massee had reportedly placed several unsolicited phone calls to a student's house — to the point where she did not feel comfortable coming to class.

U.S. District Court Chief Judge Philip A. Brimmer tossed the complaint, finding that the earlier incident of a male teacher repeatedly calling a female student at home was not "overtly sexual."

For the few cases that reached the level of a ruling from the 10th Circuit, Raykin pointed to two recent decisions favorable to complainants who bring Title IX claims. First, his own Jane Doe case against Denver Public Schools, and second, one in which the circuit court found Kansas State University could be held liable for deliberate indifference if its inaction to a report left the victim vulnerable to further harassment. (Kansas falls within the 10th Circuit alongside Colorado.)

"Most of the women who bring Title IX claims are very young," Raykin said. "The statute of limitations is too short. Two years is not enough. If you're dealing with an 18-year-old girl who was sexually assaulted, it may take her several years to deal with therapy and be in a position where she's comfortable bringing a case."

While Title IX claims fall under federal law, courts look to the two-year window in Colorado's state statutes. In 2021, the General Assembly enacted a law abolishing the statute of limitations for state civil lawsuits arising from child sexual abuse or other types of sexual misconduct. Raykin said he had not yet thought about whether the new law applies to future Title IX claims, potentially resulting in a major benefit to victims.

"I will tell you: I would make that argument if we come across a statute of limitations issue," he said.

Anti-male bias gains traction

At the same time courts are evaluating how responsive school officials are to victims complaining of sexual harassment, they are also facing, in greater numbers, allegations that institutions have gone too far — in effect, railroading young men accused of misconduct.

In a 2016 lawsuit challenging his suspension, a student at Colorado State University Pueblo wrote that schools, with encouragement from the Department of Education, are branding "students 'rapists' based on the excessively low 'preponderance of the evidence' burden of proof (equating to a mere 50.01% probability that the alleged misconduct occurred) ... and [preventing] accused students from challenging their accusers, even in cases in which the only witness is the complainant, out of concern that cross-examination 'may be traumatic or intimidating' to the 'victim'." 

At least 16 lawsuits filed in Colorado featured respondents bringing claims of bias or procedural defects in Title IX investigations. Nearly all of the lawsuits were filed in the past eight years.

In general, the cases are similar: A male student, or sometimes a faculty member, is on the receiving end of a sexual misconduct complaint. An investigator will look uncritically at the (typically) female accuser's account or disregard evidence and witnesses in the respondent's favor. The school will issue a decision of suspension or expulsion based on a low burden of proof.

While the claims in federal lawsuits typically bring up violations of a respondent's procedural rights, the Title IX allegations argue that schools and school officials are actually biased against respondents, who, in the vast majority of cases, are male.

"Title IX is an intentional discrimination statute," said Davis, the New York-based attorney. "Like any other discrimination statute, it's often hard to establish someone's motive or bias."

One of the earliest lawsuits from an alleged perpetrator stemmed from a 2002 episode of "sexually-suggestive horseplay" at Palisade High School. The school expelled a male student, but the district attorney declined to pursue criminal charges. U.S. District Court Judge Marcia S. Krieger found the student had no Title IX claim for male-based discrimination, and was unconvinced by his argument that the female students involved in the "horseplay" were not disciplined similarly.

By mid-2021, a shift had occurred. By then, more than a dozen lawsuits had been filed against Colorado colleges and universities. It was the 10th Circuit's 2021 decision in John Doe v. University of Denver that found one student's allegations that DU's Title IX process discriminated against men to be credible.

The 2016 sexual encounter that "Doe" believed was consensual later prompted a complaint from his female partner. The investigation resulted in Doe's expulsion, but Doe pointed to multiple indicators of unfairness: investigators interviewed 11 of the complainant's witnesses and only one of his. They did not inquire about the complainant's motive for making a potentially-false report. 

Crucially, as far as the 10th Circuit was concerned, Doe had presented compelling statistics about the university's expulsion of men but not women, and no formal investigations into complaints by men against women.

"As a general rule, we and other courts have declined to infer anti-male bias from disparities in the gender makeup of sexual-misconduct complainants and sexual-misconduct respondents," Chief Judge Timothy M. Tymkovich wrote. Simply put, courts acknowledge the fact that men are likelier to be perpetrators and women are likelier to be victims.

"But John does not simply raise the disparity in the gender makeup of complainants and respondents," Tymkovich concluded. "He also points to a number of other statistical anomalies that raise at least a fair inference of anti-male bias."

One month earlier, the Department of Education had announced its final Title IX rule, which was intended to provide additional protections for accused students, such as guaranteeing the presumption of innocence for respondents. The Trump administration previously rescinded a 2011 "Dear Colleague" letter from the Obama administration, which respondents repeatedly cited in their federal lawsuits as the motivating factor for schools' one-sidedly pro-victim approach to investigations.

"Trump is probably my least favorite president," said Mirabella, a lawyer on the Doe case, "but the Department of Education under Trump loosening up the Dear Colleague standards, that was definitely a step in the right direction."

'You can have the problem on either side'

Not everyone shares an appreciation for reorienting the Title IX process toward greater protections for the accused. Weiser, the attorney general, joined a multistate lawsuit seeking to block the Trump administration's Title IX rule. The lawsuit characterized the imposition of cross-examination of witnesses as the type of "litigation-like requirements" inappropriate to an "educational setting."

"I think it's important that, as these institutions look at their policies and processes, they continue to ask, 'Are we operating fairly?' and recognizing that they have two critical obligations. One is protecting due process, the other is protecting victims," said Weiser, whose office conducts trainings for school administrators about what the law requires and gives guidance about specific procedures.

"You can have the problem on either side. If victims feel like they are being revictimized in the process, they're not being taken seriously, there are too may hoops to jump through, people are suggesting that they are the problem. That's problematic," Weiser added. "Same point: if people who are accused are not given a chance to tell their story, they're being judged quickly and unfairly, that's a problem too."

Mirabella, who represents respondents in Title IX investigations, said the circumstances of the cases limit the pool of people who file lawsuits and the number of lawyers who represent them. 

"It's not just can you afford it, but the clock is ticking as you're going along," he said. "If you have a 20-year-old student that wants to get their degree and get in the job market, spending three years litigating with the university is not the best way to do it."

Multiple attorneys believed investigations should be handled outside of a school's chain of command, and could perhaps involve retired judges. Mirabella indicated that where he can have the most effect for his clients is not once the lawsuit is filed, but during the school's investigation, before the decision is final.

"It's really difficult to make an impact after a sanction," he said, "because the university tries really hard to justify what they've done."

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