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.