Tenth Circuit Judge Monroe McKay “said” the words out loud:
This concern is only heightened when there is not only evidence that the school exhibits an anti-respondent bias generally but also colorable evidence that the school employed that bias in the sexual-misconduct proceeding at issue. Here, for instance, there is colorable evidence that the investigators:
• refused to follow leads that were potentially exculpatory;
• disbelieved Plaintiff from the outset due to the “innate motive” respondents have to lie about wrongdoing, while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter with Plaintiff, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews;
• selectively determined which post-encounter evidence they would consider relevant (e.g., considering Jane’s allegation that Plaintiff offered her Aderall after the encounter in assessing Plaintiff’s credibility but not considering Jane’s inconsistent statements on whether the two saw each other after the encounter in assessing her credibility);
• allowed Jane’s boyfriend to act both as Jane’s support person who was present at her interviews and as a fact witness who provided information in the proceeding to corroborate Jane’s story and to impeach the testimony of witnesses who contradicted her story, in violation of DU’s policies;
• selectively viewed Jane as “heavily intoxicated,” implicitly rejecting Plaintiff’s and his roommate’s statements that Jane exhibited no indication of intoxication in order to support a finding that Plaintiff coerced Jane into sex but then accepting Plaintiff’s and his roommate’s statement in order to find that Jane’s intoxication had little effect on her ability to accurately recollect the encounter that night;
• faulted Plaintiff for making corrections to his summary statement and used it to attack his credibility, despite expressly inviting Plaintiff to make such corrections and apparently violating DU’s informal policy allowing interviewees to correct summary statements in order to accurately reflect their testimony;
• emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend;
• suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication;
• viewed Plaintiff’s roommate’s statements corroborating Plaintiff’s story as tainted by Plaintiff’s and his roommate’s prior conferral regarding the events of that night, while not applying this same logic to the statements of Jane’s friend who corroborated Jane’s story, even though Jane called her friend specifically to relate to him “her portrayal of the night” and to tell him “that it was rape”;
• attacked Plaintiff’s and his roommate’s credibility on the grounds they seemed overly eager to offer consistent denials of any on-campus alcohol use, without applying the same logic to the vague and inconsistent stories provided by Jane and her friend regarding their own on-campus alcohol use, even though DU offers amnesty to complainants who admit to on-campus drug and alcohol use, but not to respondents.
This litany of improprieties culminated in the only possible conclusion:
But an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.
So the male student expelled by University of Denver won? Hardly. The quote above appears in footnote 18, while the opinion is otherwise dedicated to smurfing the six cumulative arguments for why the evidence proved what is beyond clear everywhere but in a courtroom in Denver.
Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff [John Doe, the male student] opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender. We will therefore affirm the grant of summary judgment to Defendants.
In a sense, the evidence demonstrating that this “railroading” is the product of anti-male bias has begun to appear routine, not because it’s insufficient but because the situation happens in essentially every case.
First, as other plaintiffs have in recent years, Plaintiff sets the stage for his Title IX claim by shining a spotlight on the 2011 Dear Colleague Letter, which “ushered in a more rigorous approach to sexual misconduct allegations” by providing guidance to schools receiving federal
funding regarding Title IX’s requirements as they relate to sexual assault.
Second, Plaintiff points to statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU. Specifically, between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.
Third, Plaintiff points to evidence of DU’s alleged bias against respondents in sexual-misconduct proceedings.
Fourth, Plaintiff argues the investigators exhibited bias by finding Plaintiff responsible for non-consensual sexual contact despite evidence supporting his version of the events.
Fifth, Plaintiff argues that the severity of the sanction he received—expulsion—resulted from DU’s anti-male bias.
Sixth, Plaintiff argues that DU encouraged the filing of sexual-misconduct complaints specifically against males.
The circuit didn’t reject any of these arguments as false, per se, but engaged in sophist rationalization to explain why each, standing alone, was insufficient to prove that the “railroading” it not only acknowledged, but said aloud, was not discrimination against male students in violation of Title IX, but discrimination in favor of accusers and against accused.
In response to the evidence, to the arguments, Judge McKay wrote along these lines.
To the extent Plaintiff contends that an inference of anti-male bias arises from DU’s attempts to encourage sexual-misconduct reporting generally, we find any such argument unpersuasive. At most, encouragement of this nature might possibly be construed as exhibiting a bias against potential respondents because it increases the likelihood that potential respondents will be subjected to investigation and possibly sanctioned if found responsible. But both men and women can be potential respondents, and therefore any bias against them would not be bias on account of gender.
There was no doubt whatsoever that there was bias. There was no doubt, none, that University of Denver railroaded the plaintiff. There was no question that 35 of 36 accusers were female and every accused was male. And yet, none of this was “on account of gender.”
But what, the astute observer might ask, about the totality of the circumstances, the cumulative evidence, the opinions of other circuits, the thousands of rants about how this is a war between vulnerable women and toxic masculinity that has been shouted on every social media platform, throughout woke media and from the lips of former Vice President Joe Biden, whose cry is that “It’s on Us” because men are rapists and women are victims? On this, Judge McKay has invoked his judicial right to remain silent. On this, he’s got nothing to say.
H/T The indomitable KC Johnson