Going on Offense With Title IX

With increasing frequency, women are filing federal complaints against colleges accused of failing to address sexual assault. Heightened awareness of students’ rights and colleges’ obligations under Title IX of the Education Amendments of 1972, which prohibits sex discrimination, has led to a wave of protests.

Now, two men who left two different colleges after being accused of sexual assault have filed their own lawsuits alleging that administrators violated their due process by mishandling the investigations and campus judicial proceedings that led to their expulsion and withdrawal.

It’s an unusual (but not unprecedented) legal approach, utilizing a federal statute designed to protect the people who historically have been victimized by institutional discrimination. To make a successful case under Title IX, the men must demonstrate that they were discriminated against based on their status as males.

Lawyers and Title IX experts say that’s unlikely.

“Title IX protects the victim because it was put in place to do that – because there aren’t other sorts of protection,” said Erin Buzuvis, a professor at Western New England School of Law and founder of the Title IX Blog. “Neither of these students have prevailed in demonstrating what happened to them was sex discrimination.”

However, they might have cases for violation of due process – just not necessarily under Title IX. Separately, the students are also arguing negligence and breach of contract, saying campus officials conducted cursory investigations, allowed the accuser special treatment at disciplinary hearings, and ignored evidence, including Facebook messages exchanged after the alleged assault.

Most of the women who have filed Title IX complaints against a handful of colleges over the past couple of years have said they were raped by fellow students, and administrators did not effectively respond to their complaints. Campuses including the University of North Carolina at Chapel Hill, Occidental College, Swarthmore College and the University of Southern California are all under federal investigation stemming from complaints students filed with the U.S. Education Department’s Office for Civil Rights. In April 2011, OCR laid out its expectations for how colleges should prevent sexual assault and respond to complaints, including having effective policies for investigations and judicial proceedings.

The women who file those complaints are often said to have been “re-victimized” by inadequate administrative response.

In contrast, the men who filed complaints last month against Saint Joseph’s University and Vassar College are alleged perpetrators who are in effect claiming they were victimized by a system set up against them.

“Vassar has deprived Peter Yu, on the basis of his sex, of his rights to due process and equal protection through the improper administration of and/or the existence, in its current state, of Defendant Vassar’s guidelines and regulations,” Yu’s complaint against Vassar reads, noting the university’s alleged acceptance of the accuser’s statements “at face-value” and failure to record his own statements, lack of a health examination or rape kit, and refusal to accept the Facebook messages in which the accuser said Yu "did nothing wrong" and that she would " 'stand up for [Yu]' if any charges were brought."

The complaint continues, “Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct."

Yu’s complaint also seeks damages for negligence, breach of contract and several other charges. (Yu also says he was treated unfairly because the accuser's father is a colleague of the professors who adjudicated his case.) For the latter, Buzuvis says, Yu would simply have to show that Vassar violated its own rules – a charge the complaint does make.

The complaint filed by Brian Harris against Saint Joseph’s makes similar claims, alleging that the university, via a haphazard investigatory process, “creates an environment in which a male accused is so fundamentally denied due process as to be virtually assured of a finding of guilt.”

Both men acknowledge having intercourse with their accusers, but say it was consensual. Their attorneys declined to comment.

Although Title IX – an equal opportunity statute – by all means allows both men and women to sue under it, in this case, demonstrating that the colleges’ policies and processes intentionally discriminate against men “would be a fairly difficult hurdle to overcome,” said Vicky Ni, a senior attorney at Public Justice who specializes in victims’ rights and equal opportunity for women.

“Assuming that the policies themselves do not single out a differential treatment for men and women – and I would be shocked if they did – and assuming they don’t have smoking-gun evidence of bias against men, I think that it would be a very difficult road for the plaintiff here,” Ni said.

Proving there’s a pattern of false accusations that are being taken seriously could be one option, Buzuvis said, or showing that women accused of rape are consistently treated differently. (Of course, due to lack of evidence alone, both those scenarios are unlikely.)

“Maybe if he can prove that the procedural violations in his case were so egregious that they appeared to not be designed to truly determine whether he deserved to be suspended, a court will infer that the university must have been motivated by discrimination instead,” Buzuvis said. While this is their best shot, she said, it will still be difficult to prove. “I've read enough opinions dismissing pretext cases to be able to imagine a court agreeing that the procedures were flawed but still not being willing to infer that sex discrimination -- as opposed to some other reason for bias -- was the cause.”

Alternatively, the students could show that the colleges’ procedures violate OCR’s rules (though that claim is not evident in the complaints).

This is not the first time men have sued under similar context for violation of Title IX. In September 2011, a U.S. District Court awarded a student $26,500 after he sued the University of the South over violation of its sexual misconduct policies and procedures. The student had been accused of rape and ultimately withdrew from the university.

However, those damages were awarded for negligence; an additional charge of sex discrimination was dismissed.

“It’s a little bit like saying whiteness is a problem under civil rights laws,” Wendy Murphy, a victims’ rights attorney who has filed suits under Title IX, said of the cases.

“In terms of the scope of the rule, nobody will argue with you that it doesn’t cover maleness, or that men as a class can’t be harmed,” Murphy said. “But the issue is, do they have the same moral claim to be able to use the law in a technical sense?…. Even if it’s technically plausible, or in theory arguable, you still have the practical reality, which is that the nature of a man being punished for sexual assault is not under the same umbrella as a woman who brings a claim after being targeted for the harm that fits the definition of discrimination based on sex.”

Whether the men’s claims have anything to do with the increased visibility of Title IX is unclear. But as experts noted, two complaints do not make a trend.

“It might just be that maybe they are tacking on those Title IX complaints because people are finally waking up to the fact that Title IX doesn’t just apply to athletic programs,” Buzuvis said.

But the Foundation for Individual Rights in Education, which blogged about Yu's case and has protested some of OCR's recent mandates, suggested the office's recent push on Title IX and complaints of this nature are not unrelated. (FIRE and other groups concerned about the erosion of students' due process rights have protested OCR's requiring a lower standard of evidence against the accused than criminal courts, at 50.1 percent certainty for a finding of guilt, and a recent resolution agreement at the University of Montana that broadened the definition of harassment to include "any unwelcome conduct of a sexual nature." Such campus-specific agreements are widely considered general guidance for what OCR expects, and OCR called Montana's a "blueprint" for colleges nationwide.)

"As campus sexual misconduct hearings increasingly lack fundamental fairness, complaints of this nature will become more common," FIRE said in an email sent to Inside Higher Ed. "FIRE will be watching these cases closely."