The Fallout From Weaponizing Title IX

In April of 2011, the Obama administration changed Title IX policy, pressuring colleges to adopt procedures that dramatically increased the chances of a guilty finding in sexual misconduct cases. Justice for accused males became so rare that many turned to the courts, filing suit for loss of due process. Since then, universities and colleges have suffered 97 setbacks in these suits, few of them as dramatic as the ruling last Monday in a lawsuit against Johnson & Wales University of Providence, Rhode Island.

After an hour-long oral argument in which Judge John McConnell (an Obama nominee) peppered JWU’s lawyers with skeptical questions, the judge ruled from the bench that the Title IX claim would proceed. “On the pleadings,” he said, he could “find no reason at all why the result was Mr. Doe’s expulsion. The only inference [is] . . . gender played a role,” in violation of Title IX.

Related: The Media Slams Yale Student Verdict on Rape

Even among the wave of dubious campus sexual assault adjudications, the JWU case was particularly problematic. The accused student, identified only as John Doe, had a short-term sexual relationship with a female student. Months later, the female student’s new boyfriend told JWU officials that she had been sexually assaulted. When Doe wanted to question the boyfriend about why he came forward, JWU cited university procedures to deny the request. (Incredibly, the university allowed the boyfriend—despite his status as a witness in the case—to serve as the accuser’s “advocate,” thus shielding him from questioning.) The school also refused to provide Doe with a written copy of his accuser’s complaint. (Instead, a JWU administrator orally read the document to the accused student.)

This procedure ended with Doe found guilty, and JWU expelled him. The lawsuit resulted. University lawyers opened the hearing by conceding that the accused student’s breach of contract claim could move forward. But they alleged that there was no plausible gender discrimination in the case.

Beyond the injustice, there were three ways that this ruling particularly stood out.

First: in the last several months, more attention has been paid to bias in the training federal regulations require — not just Title IX investigators but also adjudicators. In another case, a ruling rejecting Penn’s motion to dismiss a lawsuit filed by an accused student, Judge John Padova noted, “allegations regarding training materials and possible pro-complainant bias on the part of University officials set forth sufficient circumstances suggesting inherent and impermissible gender bias to support a plausible claim that Defendant violated Title IX ….”

Related: Stanford’s Many Dubious Sexual Assault Claims

No school has voluntarily disclosed the contents of Title IX training. But in a tactically clever move, and one that hasn’t appeared in many (and possibly any) other due process lawsuits, Doe’s lawyer, James Ehrhard, asked Johnson & Wales University—as the campus adjudication was ongoing—for a copy of its training so he could identify JWU’s own biases and allow his client to conduct a robust defense. The university refused.

In short: JWU’s decision to keep its Title IX adjudicators’ training secret played a key role for the first in a court outcome.

Second: Like universities in other lawsuits, JWU contended that perhaps its policies were biased in favor of accusers, but that didn’t mean the policies discriminated on the basis of gender. That line of argument has often worked, but Judge McConnell rejected this reasoning out of hand—and from the bench–through an oral ruling. His basic premise—given the myriad structural unfairness in JWU’s policies—is that he couldn’t (“for the life of me,” he noted in one question to the university’s lawyers) find any reason other than gender discrimination to explain how the case developed. This is perhaps the most aggressive Title IX ruling in any of the due process lawsuits.

Third: The timing of events at JWU was particularly notable. Last September, arguing that “one person denied due process is one too many,” Education Secretary Betsy DeVos formally rescinded the Obama administration’s guidance. In response, accusers’ rights organizations filed two lawsuits against DeVos—arguing that the elimination of the Obama-era guidance would pave the way for schools to adopt accuser-unfriendly policies.

Related: Critics Slam DeVos for Being Fair

The JWU case casts strong doubts on the merits of the claims offered by the accusers’ rights groups. This entire adjudication—including the appeal, and the university’s refusal to give Ehrhard access to the training material used by the adjudicators—occurred after DeVos had withdrawn the Obama-era guidance. And yet, JWU proceeded apace, maintaining the unfair policies it had adopted under Obama.

The Johnson & Wales case is not an exception in this regard. Another post-DeVos guidance due process lawsuit came out of George Washington University—and here, too, there was overwhelming evidence of unfairness in favor of the accuser. In this case, the accused student was found guilty despite enormous inconsistencies in the accuser’s account (that she had run down eight flights of stairs while incapacitated from alcohol, a friend whose claim to have called the accuser as she was heading to the male student’s apartment fell apart under scrutiny).

The accused student sued, and he was able (through a subpoena) to obtain the friend’s phone records—which showed that no phone call with the accuser on the night of the incident had occurred. GW responded that even though the accuser lied on a critical piece of evidence, it was of no consequence because the hearing panel couldn’t have reasonably been expected to have obtained the phone records, anyway.

There’s scant merit in a system where an accused student’s best chance of fairness is a multi-year lawsuit. But we now have such a system. As a result, judges such as McConnell, who clearly had immersed himself in the filings and fairly probed the positions of both sides, must play a critical role in ensuring campus justice. As long as this spirit of defiance remains in place, courts must be vigilant in ensuring what accused students have rarely found on campuses—fair treatment.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

4 thoughts on “The Fallout From Weaponizing Title IX

  1. The penalties for making a false rape allegation needs to be the same sentence a person would serve for a rape conviction. Women want to act sexually but it’s not okay for a man to be sexual in any way or ask a woman out because that is rape just for asking or even looking at a woman. Women have too much power at Universities and governments, then they continue to pretend to be a minority group when they are the majority — it’s ridiculous.
    Hopefully, men stop supporting organizations that don’t support them and withdraw their money. Better to learn a trade rather than pay a women’s studies professor to continue to preach hate of men. Equal time for equal crime!

  2. All fruit of the poisonous tree, and the tree — in the midst of the corruption which is the Title IX ‘garden’ — is the bedrock belief that Woman is victim, always & forever.

    If we somehow have come to ‘know’ that women cannot be the equal of men…cannot be as responsible as men…are not accountable for their actions and decisions if men have been involved as partners, persuaders or seducers…well then of course women are victim. And just as we would not hold a child liable for his or her behavior if they were only doing what an adult told them to do, so too must we equally excuse the Female confronted with the power of a Male Gaze, a male word, a male desire, a male caress. It’s not their fault!

    Sure I consumed 8 jello shots and six beers…..yes I made-out with him…..yes I invited him back to my room at 2:00 AM…. of course I got undressed and climbed into bed with him and engaged in any number of acts that previous generations would have defined as “sex” (and did it again the next morning, too)…. but, looking back on it (especially after having talked with my current boyfriend), I know now that I didn’t really want to do all that. Not really. At least not the sex part (the “p in v” part, that is). Not really, I don’t think.

    And so no, he never asked me if I wanted to. And I definitely did not give my verbal consent to each step in that evening’s escalation. And no, I did not say no…but I don’t have to, do I? Especially if I were traumatized at the time: frozen as rabbit to snake before his gaze, (and God knows my ‘garden’ is full of snakes). It’s not my fault!

    And since we know every bad or uncomfortable or unwanted or discomfiting thing is ALWAYS someone’s fault — stuff doesn’t just happen, does it!? — well then let’s go get some tar & feathers.

    So it is inevitable that the University has embraced that most progressive 4th Wave Feminist Thing, and with it the required Infantilization of the formerly ‘liberated’ female. If Life is nothing but ‘class’ struggle and the world is reduced only to Oppressor and Oppressee, and no one is responsible for the consequences of his or her stupid, misguided, confused, adolescent, decisions made while horny & drunk, then the Inquisitions we see on every campus are the pathetic by-product of a post-modernist philosophy which rejects the very idea that we all own the lives we build, the decisions we make, the consequences we reap It’s always someone else’s fault!

    In the meantime, the Kollegiate Kangaroo Kourts continue.

    And if we ask Chancellor Bartleby, why he doesn’t stop this cruel farce (particularly given Secretary DeVos’s rejection of the Obama ‘Dear Colleague’) we hear only his “mildly cadaverous reply:” “At present I would prefer NOT to be a little reasonable”.

    Is anyone surprised?

  3. The neo-puritans who presumably objected to Yale student Saifullah Khan’s non-monogamous behavior should be asked how they feel about Mary Smith’s apparently non-monogamous behavior.

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