Yesterday, KC Johnson twitted of the 128th loss in federal court by a college sued for its handling of campus sex policing in Doe v. Coastal Carolina University. That’s a lot of losses, not that there haven’t been some wins, but the trend has been clear: courts are acknowledging that these proceedings are not only deeply flawed procedurally, but that they reflect anti-male bias.
Therein lies the nasty detail behind an accused prevailing in a subsequent suit under Title IX against the college. That the adjudication was a sham, procedurally deficient, has become less of a stumbling block, as courts have recognized that the stakes are huge and the denial of minimal due process is flagrant. But that’s not enough to make it past a motion to dismiss.
A plaintiff claiming erroneous outcome must allege: (1) “particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2) “a particularized . . . causal connection between the flawed outcome and gender bias.”
It’s not enough that the process be deeply, horribly flawed, but that the accused student be able to state “particularized” facts to connect the flaws to anti-male prejudice. Seems obvious? It’s not. Colleges have argued, with success, that their Title IX adjudications don’t favor women at the expense of men. They favor “victims” at the expense of perpetrators. This has long been the way to rhetorically circumvent the obvious.
When Title IX was enacted in 1972, it was about women. It prohibited discrimination on the basis of sex in education, which is neutral on its face, but was about women who were, at the time, being denied opportunities that were provided to men. But in the intervening years, its reach expanded to hold colleges responsible for peer-to-peer sexual harassment, provided it’s “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” And it was still about women.
And with the advent of Title IX campus sex tribunals, it’s still about women. They can call them victims or survivors, but it remains about women. Title IX administrators are invariably schooled in the advocacy of women “survivors.” The programs, such as “It’s On You” are about men being good allies to women by stopping other men from engaging in sexual assault. The battle lines are drawn entirely based on gender, that sexual harassment is something toxic men do to virtuous women. And everybody knows it, except federal judges.
The mechanism for hiding the obvious behind rhetorical fiction is the victim/perp dichotomy. The language of the law is neutral, prohibiting sex discrimination without regard to which gender is the subject of discrimination. Colleges will point to this and argue that they’re just protecting victims of rape and assault. And they will point to the rare male accuser to show that the law is being applied neutrally, even if that rare male accuser is accusing another male.
But the disparate impact is flagrant and egregious. Accusers are, with that rare exception, female. The accused are male. Yet, it’s incumbent on the male student to provide “particularlized” allegations of fact to show that the college, the process, the Title IX investigators and administrators, were biased against males. Did the investigator tell the accused “she hates men”? Did the administrator instruct the Gender Studies prof on the campus disciplinary board to “believe the woman”? No? Then where’s the proof?
District of Colorado Judge William Martinez in Doe v. University of Colorado-Boulder, who struggled greatly with the Iqbal pleading problem, expressed the hurdle by analogy.
The District of Oregon, for example, is surely correct when it declared, “It is a simple fact that the majority of accusers of sexual assault are female and the majority of the accused are male, therefore enforcement is likely to have a disparate impact on the sexes.” Austin, 205 F.Supp.3d at 1225. But how far does this reasoning go? The vast majority of nurses in America are female. If the administration of a particular hospital begins to crack down on complaints against nurses, the administrators could similarly proclaim that they are pro-patient, not anti-female.
But there also may be circumstances in which an inference of sex discrimination becomes plausible. Or consider a city whose various taxi fleets are dominated by members of a particular immigrant ethnicity. If police officers or the local regulatory body begin to “pay more attention to” — or from the drivers’ perspective, “regularly harass” — taxi drivers, government officials could claim that they are protecting passengers, not discriminating against those of the taxi drivers’ ethnicity. But again, there also may be circumstances in which an inference of ethnicity discrimination becomes plausible. Indeed, if enforcement officials are regularly presented with a scenario involving the same two potential classifications — nurse and female, taxi driver and ethnic minority, sexual assault suspect and male — there must come a point when one may plausibly infer that stereotypes about the protected classification (such as gender or ethnicity) have begun to infect the enforcement process generally.
Judge Martinez should have, but didn’t, hit that “point” where the obvious became, well, obvious, and so dodged his own point.
In every case the Court has located, the accuser has been female and the accused has been male — and these individuals were, not surprisingly, the only potential eyewitnesses to the alleged assault.
In an unbiased system operating on a preponderance of evidence standard, the accuser would, without additional evidence to tip the balance over the 50% line, lose. Yet, accusers almost invariably win in swearing contests because “believe the victim” (and do whatever one has to do to rationalize why the accused’s denial is inherently less credible) is the campus rule.
There is a reason why “disparate impact” has become the primary evidentiary means of proving discrimination, as proof of open animus is rarely available. In Title IX cases, there is overwhelming evidence of general bias in favor of women and against men, on top of disparate impact.
But for the purpose of pleading a “plausible” cause of action under Title IX, the allegations must be “particularized,” so as to show that in this case, these players were tainted by bias and this accused was the victim of anti-male sex discrimination.
These tribunals are infected with prejudice, and it’s well beyond the point where any rational and modestly observant person can ignore that this system is designed and executed for women as victims, men as perps, and males denied their right to due process. It’s not merely “plausible.” It’s obvious. Hiding gender behind tears of victimhood doesn’t make the flagrant sex discrimination under Title IX any more palatable than cops rationalizing their targeting black neighborhoods because they’re just more “criminal-ish.”