Justice judge court gavel scales

The U.S. Court of Appeals for the Tenth Circuit on Monday ruled that the University of Denver did not discriminate on the basis of sex when it expelled a male student for alleged sexual misconduct. However, the court warned DU that its process for adjudicating such issues appeared riddled with inconsistencies that disadvantaged the alleged perpetrators.

Plaintiff John Doe enrolled at the university in 2014. In October of that year, he had a sexual encounter with another freshman student in his dorm room. Six months later, the female student, Jane Doe, along with her then-boyfriend, filed a complaint of non-consensual sexual contact to DU’s Office of Equal Opportunity.

Investigators with the school interviewed John Doe and Jane Doe multiple times in the spring of 2015, and spoke with witnesses who were in the dorm before the alleged incident. A preliminary report did not draw any conclusions, but the final report in July found it more likely than not that there was “nonconsensual sexual contact with [Jane] by means of coercion in violation of [DU’s] Policies.”

The university consequently expelled John Doe.

He sued, alleging violations of his rights under Title IX, the federal prohibition on sex discrimination in education. A district court dismissed his claim, saying that he failed to show that DU acted with gender bias. There was not enough evidence, in the court’s view, to conclude that the university was biased against males.

John Doe submitted as evidence the finding that between 2011 and 2016, 35 of 36 complaints of sexual assault were from women, and in all of those cases, the alleged perpetrator was male. Circuit Judge Monroe G. McKay, writing for the three-judge panel, did not agree that those data were conclusive of anything.

“Plaintiff does not explain how this disparity amounts to gender bias on the part of DU,” McKay wrote. “Plaintiff points to no evidence suggesting that DU changed its policies in light of this statistical disparity or in order to combat sexual assault perpetrated specifically by men against women.”

McKay contrasted Title IX cases to employment discrimination, where the employer controls the hiring or promotional criteria that give rise to complaints. However, in DU’s case, “the putative nondiscriminatory causes of disparity — the gender makeup of sexual-assault perpetrators, victims, and reporters — are almost completely beyond the control of the school.”

The plaintiff took issue with how the resources from the school throughout the process seemed to benefit alleged victims more so than alleged perpetrators, including the use of “survivor” when referring to victims. That may be the case, the court concluded, but “anti-respondent bias” does not equate to “anti-male bias.”

The court noted that in the absence of further evidence stating that the school knowingly operated an unfair process, John Doe had not proven his case that his expulsion was a discriminatory outcome in its severity owing to his gender. A school representative defended the punishment by saying that John Doe did not take responsibility for his alleged actions, was unlikely to rehabilitate, and therefore merited expulsion.

“Again, Plaintiff has not eliminated the obvious, nondiscriminatory explanation that DU, as expressed in its own policy, has legitimate interests in expelling students — regardless of their gender — who engage in non-consensual sexual contact,” McKay wrote.

While the panel upheld the district court’s ruling, McKay warned that biases against alleged perpetrators “are beginning to infect” campus adjudication processes for sexual assault, and cited a lengthy list of procedural oddities — including DU’s selective consideration of evidence, its invitation for John Doe to amend his statements while later faulting him for doing so and an emphasis on inconsistencies in John Doe’s account but avoidance of similar treatment for Jane Doe’s inconsistencies. Taken together, John Doe’s treatment looked like “railroading.”

“Permitting, or even encouraging, an investigator who also acts as inquisitor, judge and jury to harbor an anti-respondent bias is repugnant to basic notions of due process and substantial justice,” McKay pointed out to DU. “However, as deeply troubling as this kind of bias may be, it is simply not proscribed by Title IX, which only prohibits discrimination” based on sex.

The case is John Doe v. University of Denver.

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