Catching someone with the smoking gun in her hand is rare. But it occasionally happens, as was the case when University of Southern California Title IX Director Gretchen Dahlinger Means thought she had dropped out of a conference call. Via KC Johnson:
At University of Alaska, Fairbanks, the curiously titled Director of Diversity and Equal Opportunity, Mae Marsh, put it in an email.
But Andrew Miltenberg wasn’t so lucky when it came to his John Doe’s suit against Columbia University. There were the facts of what transpired, the usual find all the adverse evidence, spin it as hard as possible, ignore the exculpatory evidence and burn the boy. But without the smoking gun, Columbia moved to dismiss the complaint on the basis that it wasn’t discriminating against males, but rather giving the customers what they wanted.
The alleged sexual assault was, well, you decide.
On the night of May 12, 2013, Plaintiff, a male Columbia freshman who upon completing his freshman year became a varsity athlete, was studying for a final exam in his residence hall. At approximately 1:00 a.m. a female classmate and member of the same circle of friends, identified in this litigation by the pseudonym Jane Doe, approached him and initiated a conversation. They took an hour-long walk together, and eventually began discussing the topic of “hooking up.” The Complaint alleges that, in the interest of privacy for a sexual encounter, Jane suggested using the bathroom of her dormitory’s suite. She insisted on using her suite rather than his because her ex-boyfriend was Plaintiff’s roommate. She told Plaintiff to wait in the bathroom while she went to her bedroom to retrieve a condom. She then undressed herself in the bathroom, and they proceeded to have sex.
There is an outside possibility here that you may be unclear how this narrative suggests rape. That’s because you’re not a female college student, a Title IX coordinator or a college administrator. This is why.
According to the Complaint, the report falsely depicted Plaintiff as having inflicted nonconsensual sex on Jane Doe, by virtue of having coercively pressured her over a period of weeks to have sex with him.
And because colleges have become particularly good in handling the fact-finding function of rape adjudications, Columbia reached its determination.
Although Plaintiff denied having coerced Jane Doe and alleged that no evidence was presented in support of such coercion, the panel found that Plaintiff had “directed unreasonable pressure for sexual activity toward the Complainant over a period of weeks” and that “this pressure constituted coercion [so that] the sexual intercourse was without consent.”
After going through the series of steps provided to maintain the pretense that John Doe had a chance, he was given a one year suspension (which, because of how semesters are structured, worked out to a year and half suspension). Doe sued for his own violation of Title IX, alleging Columbia had discriminated against him based upon his sex.
Columbia’s answer was that it had nothing against guys, but was under a lot of media pressure (remember Mattress Girl?) and was losing the Title IX PR game by being too accommodating to facts. The district court held that catering to the desires of customers wasn’t sex discrimination.
Columbia argues that the pleaded facts do not support an inference of intentional sex discrimination. It argues that the criticism of the University was for not taking student complaints of sexual assault seriously, and that any motivation on the part of the panel to demonstrate that it takes such complaints seriously is not the same thing as a motivation to discriminate against an accused male student. The district court stated that any bias in favor of Jane Doe “could equally have been—and more plausibly was—prompted by lawful, independent goals, such as a desire (enhanced, perhaps, by the fear of negative publicity or Title IX liability to the victims of sexual assault) to take allegations of rape on campus seriously and to treat complainants with a high degree of sensitivity.”
This is an age-old argument in the world of discrimination. Airlines argued that its passengers preferred female stews. Chinese restaurants complained that diners preferred Chinese waiters. Columbia argues that students prefer schools that believe the “survivor” and where every male is presumed a rapist. Columbia has a rep to maintain, seats to fill, students to appease. And it was getting slammed in the media for putting too much emphasis on facts and not enough on women’s feelz. Something had to be done.
The Second Circuit reversed, in a tepid opinion by Judge Pierre Leval, replete with Gertruding up the wazoo, holding that the plaintiff met the minimum pleading requirements to establish an adequate inference sufficient to survive a motion to dismiss. Yet, slipped into footnote 11 is this bit of insight:
It is worth noting furthermore that the possible motivations mentioned by the district court as more plausible than sex discrimination, including a fear of negative publicity or of Title IX liability, are not necessarily, as the district court characterized them, lawful motivations distinct from sex bias. A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.
Proving that a college has a “discriminatory heart” isn’t easy. Not every Title IX coordinator forgets to drop a conference call or puts their bias in writing (or discloses the emails in litigation that proves intentional discrimination). And given the pervasive narrative that American college campuses are rife with rape, under constant investigation by the Department of Education’s Office of Civil Rights, what’s a school to do? Well, burn the guys. That’s what.
Then again, none of this should be happening in the first place, but for some administrators who decided that they would manufacture law where Congress never authorized them to go. That’s the decision that remains elusive. All this wrangling over the fringes is the consequence of a “system” that was never meant to exist and has never been capable of serving any legitimate function.