A new ruling from the Second Circuit reverses a dismissal on alleged anti male bias under Title IX against Columbia
Anyone know if this is true?
Are the university processes mandated by by DOE?
It depends on whether you believe the Dear Colleague Letter promulgated by the Office of Civil Rights is “rule making” or “guidance”. Some people believe that the Office of Civil Rights has effectively made new regulations under Title IX (lowered standard of proof, no mediation, “prompt and equitable” sexual assault investigations, etc.) by an aggressive use of its investigative powers of schools who did not change their policies to conform to the concepts laid out in the Dear Colleague Letter. Others believe that the Dear Colleague Letter did not make any new rules, but just clarified what the law (Title IX) always required.
I remember this case from when it was initially filed. It’s the one where John Doe claims the sex was consensual (Jane Doe invited him into her bathroom after a night of flirting, she got the condom, she undressed herself) but afterwards she became concerned that her ex-boyfriend–John Doe’s roommate–would find out they got together.
John Doe says the school investigator neglected to inform him of his rights and the procedure of the tribunal; did not interview witnesses that could be in his favor, and repeatedly took inaccurate and incomplete notes when she interviewed him.
This is also the case where Jane Doe herself petitioned for a lesser punishment during the appeals process.
And what exactly does this mean (from the OP article):
"coercively pressured her over a period of weeks to have sex with him”
as a finding of sexual assault? Part of Columbia’s defense is that they did not have to interview witnesses from that night as John was not accused of physically forcing himself on her that night. Does that mean he was accused of wearing her down to the point where she no longer had the energy to say no? That he brainwashed or hypnotized her into getting a condom for him and undressing herself?
I understand instances of verbal coercion involving power imbalances or even blackmail—maybe that is what Jane Doe is alleging? “If you don’t have sex with me, I’ll tell your prof you cheated on that test?” Something like that?
It is hard to know without her side of the story. I am really trying to imagine what he could have said to her over a course of weeks that would constitute assault/eroding her ability to ever consent and yet the friendship continues with early morning walks and consensual sex in her bathroom?
It appears Columbia is saying (based on the decision linked in the OP article) that the sex in the bathroom , while appearing consensual THAT NIGHT, could not have been because of the coercive pressure of the previous weeks?
Very confusing.
I got some of the info above (including that Jane initially reported the sex as consensual to her RA) from the dismissal papers written by Judge Furman here, pages 5-10 give a summary):
https://pacer-documents.s3.amazonaws.com/119/427384/127115945454.pdf
It really bothers me that John Doe could not correct what he saw as incomplete/incorrect notes; that the witnesses from that night and people who could testify to Jane’s demeanor etc in those weeks leading up, such as her friends and roommate, were not interviewed; that he wasn’t informed that he needed to prepare a statement at the hearing; and that his questions for Jane were deemed irrelevant. I am also intrigued by the information about India Knight, a friend of the accuser, who apparently offered information contradictory to Jane Doe’s account and was completely dismissed by the investigator.
Columbia has a problem with the investigator.
Everyone should be bothered by this.
I have only very quickly skimmed the decision but seems to me the important takeaway here is really the Littlejohn decision. That decision came down just after the Southern District dismissed John Doe’s complaint. Given that it was also a Second Circuit decision, the vacation of the judgment and remand should have been no surprise.
Looks like Littlejohn held that the framework that the Supreme Court articulated for Title VII cases in the McDonnell-Douglas case will also now apply to Title IX complaints. Those standards include that the plaintiff only has to support a “minimal inference of bias” to meet his pleading burden and defeat a motion to dismiss.
A “minimal inference of bias” is not going to be a difficult standard to meet. I have no issue with that at all. It does not affect the actual merits of the case. It simply makes it more likely that plaintiffs who believe their Title IX proceeding was fundamentally unfair will have the opportunity for judicial review of those grievances.
And no one should be bothered by this.
It makes it more likely that lawyers will make money on cases that have little chance of winning (not saying that is the case here based on what little I’ve read).
Are the university processes mandated by by DOE?
Yes and no … and my school had to pay a whole lot of money to lawyers to make sure our processes comply with the Title IX/VAWA regulations.
Hey @“Erin’s Dad”, lawyers are people too! And yes, the upshot of this decision, particularly if it is picked up by other Circuits, is that more of these cases will settle. In the cases we have seen which survive the Motion to Dismiss stage and consequently proceed to discovery, the schools have not come across well.
Well what’s good for the goose is good for the gander. The unis simply cannot operate on an assumption of guilt because it fits their political agendas. And settle unis will, rather than sustain the cost and public scrutiny of an actual court trial…nor can they continue to pay and pay and pay…sooner or later they will hit their pain point with their insurance companies or state litigation pools.
The latest in some questionable uni behavior is a recent suit filed against USC. The blogosphere and court documents state that the university Title iX executive director is caught on a phone conversation calling the “male defendant and his attorneys” a number of disturbing names that are not repeatable in this forum. The courts have so far issued a stay to prevent USC from expelling the defendant. The lawsuit just filed is online, but 376 pages…yikes. Bottom line, unless pressure comes to bear on the DOE to rework their “suggestions”, judges will continue to support that defendants must know the factual allegations against them, and findings must be supported by the facts and why would anyone in this country ask for less than that.