Senior District Judge Glen Conrad stopped the bleeding for the moment, which was obviously a good thing.
In an unusual sex-discrimination lawsuit, a federal judge barred the University of Virginia from having a hearing for a former student accused of rape, as a consequence of which his degree might be withheld, saying the institution might not have authority to punish him for the alleged incident that occurred off campus.
There are three facts to note here. First, the accused student had completed his studies and was all but done, awaiting commencement ceremonies and receipt of his diploma. Second, the alleged non-consensual sex occurred two years earlier. Third, the purported “victim” wasn’t a student and the sex occurred off-campus.
Nonetheless, Judge Conrad went through the motions of taking UVA’s argument seriously. Why?
The court recognizes that the University has a “strong interest in maintaining campus safety and disciplining students who have committed sexual misconduct.”
This is one of those generic arguments of “interest” that reflect the dreaded notion of “remember the rubric, forget the rationale.” The entire notion of colleges becoming sex police of their students is itself attenuated from Title IX, which prohibits nothing more than “sex discrimination.” But it does not prohibit sex discrimination in some existential way, but as the Supreme Court made explicitly clear:
It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.
By definition, an alleged “victim” who is not a student cannot possibly be denied equal access to educational opportunities. In other words, judges seem to have missed the grossly attenuated point of Title IX, which is to assure equal access to education, not to empower colleges to be roving prosecutors of male student’s sexcapades.
But the interest asserted takes the chaos theory of law that’s seized control of Title IX a few steps further. The college isn’t so much interested in the non-student victim, but in its female students who might fall prey to this male rapist. Forget severe, pervasive and objectionably offensive, as it’s gone to the possibility that allowing a male on campus who might sexually assault someone.
There are a few points about Judge Conrad’s decision worthy of note, the first being that the male student had the good sense to lawyer up quickly, ahead of the hearing, the deprivation of his diploma and the irreparable harm that would have ensued from this debacle, so as to have his case brought before a judge and obtain a temporary restraining order, even if it was only temporary.
Further, Judge Conrad, to his credit, didn’t punt the case, holding that there was no justiciable harm until college found the accused guilty and denied him his fully-earned degree. The court recognized that the impending harm, in light of the circumstances, was presumptive.
The court also concludes that Doe is likely to suffer irreparable harm in the absence of
preliminary injunctive relief. In opposing Doe’s motion, the University argued that the presence of a colorable due process claim is not sufficient to justify the entry of a preliminary injunction. However, courts have recognized that “[w]hen constitutional rights are being threatened or impaired, irreparable injury is presumed.”
The curiosity here is that UVA, in its zeal to harm its own student, pushed the argument that its interest was so important that it was worth the denial of due process to the accused to find him guilty, lest his uncontrollable rapist urges compelled him to rape a coed on the way to the stage to receive his degree.
UVA spokesman Anthony de Bruyn provided a statement on the university’s behalf: “The university takes seriously any allegation regarding sexual assault or harassment. Allegations of sexual assault or harassment by or against university students are promptly and equitably addressed in accordance with the university’s policy on sexual and gender-based harassment and other forms of interpersonal violence and its procedures for reports against students. The university intends to defend the integrity of its process in court and will have no further comment regarding the ongoing litigation.”
Colleges’ use of Title IX no longer has any connection to the law’s purpose, or even attenuated purpose, and is now merely preformative signaling of its deep, abiding and entirely irrational concern for women. If a college doesn’t put on a show for the unduly passionate, the fear is that it will appear insensitive to the cries of rape. That it destroys a male student in the process is a price it’s willing, happy, to pay. Even when the male is a student of the college, while the woman has nothing to do with the college and no educational opportunity involved.
And even when the male student is a former student, and there is no “integrity” at stake at all.
This was a relatively decent outcome, even though the case is not concluded and Judge Conrad offered UVA the chance to supplement its opposition to the TRO with the tears of fearful co-eds who might find themselves sharing a commencement auditorium with this potential rapist.
But had the court, and the school, not lost sight of what the law addresses, this should never have been a case at all, and Judge Conrad should have ripped UVA’s arguments to shreds, tossed the case altogether and made clear that he would not accompany UVA down this absurd rabbit hole.