by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
The Washington Post reports a surprizing legal victory:
Can a male student held responsible by a university for an alleged sexual assault successfully make the case that his fate was the result of sex discrimination against him?
Many have tried and many have failed. Indeed, some have been all but laughed out of court.
But now the Second Circuit U.S. Court of Appeals has opened the door to just such a scenario. Reversing a U.S. District Court decision, the panel ruled Friday that a former athlete’s suit against Columbia University, which suspended him for a year for “sexual assault: nonconsensual sexual intercourse,” may go forward based on his claim that university officials acted with anti-male bias, in violation of Title IX, the federal education law that bars discrimination by schools receiving federal funds.
It’s not a decision on the merits — the court did not say the student was a victim of gender bias. It simply ruled that he made a sufficiently plausible case that he may now go forward with a claim the district court judge in the case called “overwrought” and tossed out.
This surprising ruling could have major repercussions in other cases….
The processes used by universities, and mandated by the Department of Education’s Office of Civil Rights, are nothing like a criminal proceeding. No lawyer is permitted for the accused. No cross-examination is permitted. The standard of proof for a finding of “responsibility” is not “beyond a reasonable doubt” but a “preponderance of evidence,” a 50.1 percent chance that the accused did what he was accused of, the standard applied to most civil suits by the courts. The approach has been intensely controversial.
In [the plaintiff’s] view and that of his lawyer, the university’s investigation of the woman’s charges was deeply flawed. Officials, he alleged, had been “hostile” to him, rather than neutral, and had not followed their own rules designed to ensure fairness. Among other things, he said the woman investigating his case did not interview witnesses he believed would support his case. Officials failed to advise him that he was entitled to assistance in defending himself and to a student representative, albeit not a lawyer, to help him out….
Private universities such as Columbia and Yale are not required to observe due process guarantees applied to governments. But they do have to obey Title IX, which bars gender discrimination. John Doe sued under Title IX.