Another question re: language. Would Paul have less of a case (assuming he has one now) if Emma had spoken in more general terms?
“I myself have been sexually assaulted, as have many on this campus. I believe some of us may have been raped by the same man. This project is for all survivors, and the hope that Columbia is soon free of all those who have raped and who would rape.” Something like that, instead of making it about her specific alleged attack and her specific alleged attacker?
Even if Paul’s name eventually got out as one of the men she was referring to, because her project is more “global” it seems he might have less of a case that he was a direct target of harassment?
Columbia would then be able to say they were supporting a student project about the general issue of rape on campus. I think they are trying to say this now, but Emma has been very clear this is a targeted campaign to get Paul off campus masquerading as a senior thesis.
@cardinal fang To your 12:25 post (I wish I knew how to quote). Yep, I think you hit the nail on the head. Let me try and explain what I mean. I think it is obvious that the actions taken by Emma could be seen by a reasonable person as harassment directed at Paul based solely on her feeling that he was the aggressor in a sexual encounter. Generally speaking, we have always viewed such allegations through the lens of gender. Certainly it is reasonable to say that this isn’t gender based, she thinks he is a sexual predator and is speaking out about it. There are female sexual predators, she never says only men rape, etc. Perfectly rational position. But it really individualizes the question of what is gender based under the statute. And that makes me think well, if a female can carry a mattress around for course credit and give speeches calling her former boyfriend a serial rapist without triggering the “based on gender” language, then what the heck will qualify? For example, if creepy dude 1 stalks Ms. Apple Pie on twitter, facebook, heck shows up and flashes her at her dorm, and the university cops say hey, it is all in good fun lighten up! Is he doing it because he is sexually attracted to her, probably, yeah. Well, guys can be sexually attracted to other guys, so that’s not gender based either, right? That would gut the statute. Courts don’t generally like to do that.
So yeah, it is possible a court will go down that road, but I doubt it. I think it is safe to assume that f the court gets there, they will find the harassment to be gender based, I think the real interesting issue is does Columbia have a duty to act. I think that is the first thing a court will look at and I think it is what makes this case important.
I see a rational basis for my belief that I got the wrong grade. But I don’t see any rational basis for my belief that I got the wrong grade because I was a woman. My bad treatment from the tutoring center and the slacker dude who got a good would be reasons for my belief that I was discriminated against because I’m a woman, but I didn’t put the slacker dude and the tutoring center in my complaint.
But in any case, we agree that in order to succeed in my lawsuit, I must demonstrate that I was treated differently because of my gender, right? At some point, whether by dismissal, summary judgment or just losing the case, if I don’t prove that I was treated differently because of my gender, I’ll lose. So Paul has to demonstrate somehow that if he were lesbian Paula accused of the same offense, the university would have treated him differently, doesn’t he? Just like I have to prove that if I were a male Prince of the Church I’d have gotten an A in calculus, or I’ll lose my lawsuit.
Are some people arguing that sexual assault perpetrated by a man on a woman is gender-based discrimination covered by Title IX, but harassment by a woman of a man based on a rejected sexual assault allegation isn’t gender-based discrimination? That seems a bit odd to me, and sort of points out how much weight Title IX has been asked to bear.
Edited to add: It’s a little confusing to refer to posts by their time of posting. You referred to a 12:25 post of mine. I scanned backwards to see which post you meant. Then I remembered that it’s 10:15 here and I had to convert from your time zone to mine. A lot of people use post numbers instead of times to refer to previous posts. That’s not great either, because when the moderators delete posts, all the other posts get renumbered, but if you’re in a thread where the moderators aren’t active, using post numbers is better than using times.
@Ohiodad51 , you are making a leap from harassment to gender based harassment which is why you are receiving so many questions.
You are also making a leap that if Columbia loses on gender based harassment, there is an issue whether Columbia has a duty to act. Columbia could argue there is a duty to act to prevent gender based harassment under title 9 and gender based harassment did not occur in Paul’s case.
I am trying to take one issue at a time here.
I didn’t realize we skipped right to gender based harassment and what are the obligations?
I think I’ve mentioned on this or some other thread that I tend to be a legal realist, which means that I tend to think the law is what judges do, rather than what they necessarily say they are doing. Thus, I think it’s important to consider whether a judge, looking at the complaint, is likely to think the plaintiff has been mistreated in some way that should be actionable, even if, maybe, the exact theory hasn’t been clearly stated in the complaint. In my experience, if a judge thinks that, he is less likely to dismiss the complaint–he may even allow it to be amended to get the right theory in place.
So what about the Columbia case? It could depend a lot on the judge that is drawn. I will say that if were the judge, I wouldn’t dismiss the case on the pleadings if there was any sensible way to think there was a cause of action. I’d want Columbia to explain itself before letting go of the case.
@Cardinal Fang, yep. Exactly right. At some stage, there is probably going to have to be proof that either a guy in Emma’s shoes was treated differently than she was, or a woman in Paul’s circumstance was treated differently than he was. I think that is likely the summary judgment stage, not the motion to dismiss stage. My two caveats are that if the court says the college has no duty to protect a student from harassment by another student, then they never reach the issue of if Paul was treated differently because he was a guy. Two, if the court says broadly thatTitle IX requires protection from student on student harassment, then whether Columbia has acted at all becomes the first question and you only get to gender based distinctions if the college took different steps here than in previous cases. And I think the complaint does contain allegations about slacker dude(Emma violated the confidentiality rules without sanction) and the tutoring center (Paul asked for relief from the harassment)
@dstark. Title IX is also about gender based harassment, which is different. More to the point, OCR has been pushing an interpretation of the statute that requires certain steps be taken to make a safe environment. It is that interpretation that is at issue here. In other words, a court could very well say that Columbia has no duty to protect one student from being picked on by another. But if they do, that is going to inform the decisions made the next time a woman complains about a guy harassing her. Make sense?
@bearpanther, yeah, if she was just holding a rally against campus rape, and someone dug up a copy of the police report where she alleged he raped her, there is likely no case here.
@dstark. Yes, I believe that the harassment here becomes gender based harassment in one of two ways. One, they are allegations of sexual misconduct, which are commonly perceived as gender based, and to hold that these are not really narrows the scope of Title IX. I laid out why I believe that a few posts ago. Two, if Columbia acted to try and protect a woman from similar style harassment in the past, that would be evidence that the college viewed the harassment as gender based in one circumstance but not the other. The first question may be appropriate at the motion to dismiss stage, the second at the summary judgment stage
Cardinal Fang, most cases aren’t dismissed on a motion to dismiss unless there is a technical or legal problem with the Complaint; most are not dismissed on facts because the Plaintiff should be allowed to conduct discovery. In your example of the girl with the bad grade, if the girl was in the wrong court, or was not a student at that school, or the school was not subject to the jurisdiction of that court, it will be dismissed. If there is no law stated in the claim (didn’t claim a title IX violation, just said ‘it’s not fair’) then it might be dismissed. The standard to go on to the next level, discovery, is very low. The plaintiff just needs to show that he might have a case. Your girl should be able to develop her theory that the professor always gives lower grades to women, and she might need discovery to gather that information.
I didn’t read the John Doe case, but from what Ohiodad said, it sounds like the judge wanted the case gone and may be reversed on appeal. The judge was really saying that Title IX COULD not apply in John Doe’s case, not that it DID not apply based on the facts. I believe the judge is wrong and that the standard for dismissal should have been COULD the claims have merit, not DID they have merit.
Yes, I am a lawyer but haven’t done a lot of federal trial work. I did do a civil rights case against a university/state years ago, and most of the claims were dismissed at the summary judgment stage, but after hundreds of hours of depositions of university officials, thousands of documents, affidavits, interrogatories, and other evidence. Even after most of the claims were dismissed on summary judgment (over 400 pages of motions and responses), we still had a 4 week trial on the remaining claims.
I DID read the John Doe case. The judge may have wanted the case gone; I don’t know. But what he said was that under Twiqbal, the complaint itself has to contain alleged facts to support plaintiff’s claim that the harassment he suffered was gender-based. He seems to be saying that he would dismiss my case about the calculus class if I didn’t give any reason to believe my F was because of my gender. He doesn’t say this directly, but I infer that he is saying that my bad grade in calculus doesn’t license me to go on a fishing expedition: I’m not entitled to use discovery to find out if the grade was because of my gender, if I can’t offer any reason that I suffered gender-based discrimination other than that I’m a woman and I got a bad grade in a math class.
Notice that Iqbal’s complaint was deemed deficient by the Supremes, because he alleged discrimination on the basis of his race and religion but (in their view) didn’t provide supporting facts that would allow the judge to conclude that he was discriminated against because of his race and religion. That’s what Furman is saying about the John Doe complaint: that it’s deficient because it doesn’t provide supporting facts, and that it therefore cannot proceed.
Furman is explicitly saying that discrimination cases, under Twiqbal, have different rules about complaints than other cases.
And wondering how Paul would be able to offer proof that a woman was treated differently by Columbia in similar circumstances due to the confidentiality of these sorts of cases? Would the university have to produce case histories of other incidents pursuant to a discovery request, or would those documents still be considered private and confidential?
Twombly and Iqbal apply to all cases filed in Federal Court, the fact that Iqbal happened to be substantively a discrimination case (at least in part) is really meaningless. There is no heightened pleading standard in discrimination cases.
Let me give you an idea of why I think Furman’s opinion was aggressive under the rules set out in these two cases. It used to be that a complaint which contained the allegation “the officer’s illegal stop and frisk violated plaintiff’s rights under 42 USC 1983” would be interpreted to mean that the plaintiff had put the defendant on notice that he intended to prove each of the elements of 1)an illegal stop and 2)the violation of the statute (yes, I am over simplifying). Since 2009, courts can now say, wait a minute, saying that the stop was illegal, or that the conduct violated Sec 1983 is not enough, that is just a conclusion of law. You need to allege facts saying why the stop was illegal, or how the statute was violated. Under the current rule, most courts will permit a complaint that says “the officer had no valid reason to stop the vehicle” as an assertion of fact that could potentially support a finding that the stop was illegal. Given what Furman said in Doe, he would likely find the allegation that “the officer had no valid reason to stop the vehicle” to be a conclusion of law, which he is entitled to ignore, and then dump the case because there are no factual allegations which would allow the plaintiff to prove the stop was illegal. replace “valid reason to stop the vehicle” with “because of his gender”, and the analogy to Title IX cases will become clearer. I think this is stretching the “conclusory statements of law” language in Twombly too far, but I don’t sit on the 2nd Circuit. And thanks for the info on how to quote.
The first question is always “What’s the duty?” Can’t get anywhere without figuring that out first.
And I can make a credible argument that rape is a crime of violence, not simply a question of non consensual heterosexual sex. Certainly lesbians can rape lesbians, women can rape men, etc. I think either all allegations of sexual misconduct based harassment are presumptively gender based or none are. In other words, a doesn’t follow b anymore frequently than b follows a.
They would likely be produced, if they exist, pursuant to a protective order prohibiting their disclosure outside of the litigation. Although Judge Furman initially wouldn’t permit the John Doe filing in the case before him, and the only reason the plaintiff’s name is not disclosed there is because Columbia agreed to confidentiality in that case (at least according to the footnotes to his opinion).
I’m not convinced your analogy holds. In order for a stop and frisk to be legal, the officer has to have one of a short list of reasons to stop the person. If none of those reasons obtain, then the stop is de jure illegal. I contend that saying “The officer had no valid reason to stop the vehicle” is exactly the same as saying “The officer did not have reason A, B, C, D, E, F or G to stop the vehicle, and those are the only possible reasons to stop the vehicle.” Certainly, saying the latter would be adequate reason for the suit to continue, because the plaintiff couldn’t do any better than saying none of the valid reasons were present.
If the former is exactly equivalent to the latter, then saying “The officer had no valid reason to stop the vehicle” is equivalent to saying “None of A, B, C, D, E, F or G were true.” It’s an assertion of fact: the (alleged) fact that none of the valid reasons were true in the case.
But in the Columbia John Doe case, we could easily imagine that John Doe was discriminated against, but not because he was a guy. John Doe asserts without justification that he was discriminated against because he was a guy, but why should we believe that? He could give reasons that the discrimination was gender-based, but he didn’t. That his (alleged) discrimination was gender-based is clearly conclusory in the way that “No valid reasons exist” is not. We can easily think that no valid reasons exist for John Doe to be discriminated against, without concluding that the particular invalid reason he was discriminated against was his gender.
@cardinal fang. Not sure what distinction you are trying to draw. Both the statement “the officer had no valid reason for the stop” and “this action was taken because of my gender” are conclusory statements of fact. The numerosity of the alleged valid alternatives to taking the action don’t somehow change one statement into a statement of law. And you are misconstruing the burden at the pleading stage. It doesn’t matter if you can reasonably think of some other reason why the action could be taken. What matters is is it possible to believe the action was prohibited by law.
