Case Studies
John Doe v. The University of the Sciences
Citation: EDPA case No. 2:19-cv-00358 (April 15, 2019)
John Doe had sex with fellow student Jane 1. He did the same with fellow student Jane 2 while at the University of the Sciences, a tiny school with about 1,200 undergrads. John had snapchats and texts from the Janes scheduling the sex. Importantly, John was injured in his hip and drunk while with Jane 2 who was also drunk. Both Janes joined to complain against John for sexual misconduct. University of the Sciences has a Sexual Misconduct Policy and a Title IX Coordinator, yet, here, it brought in an outside female lawyer to investigate and recommend John’s expulsion. The investigator cherry picked from the evidence, excluding what helped John. She ignored John’s defense, including that his hip injury prevents him from doing what Jane 1 said he did to her—pin her, and she failed to prosecute Jane 2 for having sex with a drunken John.
The problems that John’s legal team will have to solve may include:
• Showing to the Court that an outside female investigating lawyer, who was paid by the University of the Sciences, actually “convicted” John with her own anti male bias and without regard for the school’s procedure. For example, John will argue that an unbiased investigator would doubt Jane 1 because John’s documented hip injury prevented him from pinning her.
• Persuading the Court that the university appeals panel that relied on the investigator’s determination was a “cat’s paw” that simply duplicated the investigator’s bias against John which invalidates the expulsion.
• Appealing to the 3rd Circuit to establish that men suing over biased sexual misconduct expulsions must be allowed to use the 2nd Circuit’s decision in Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016) for otherwise the schools hide from the men the evidence required to survive a motion to dismiss.
John Doe v. The University of Pennsylvania
Citation: 270 F. Supp. 3d 799 (E.D. Pa. 2017)
Penn expelled John Doe, a man of color, on a classic pattern of “he said” but the Title IX staff believed what “she said” which John suggested was what Jane’s roommate and Penn Women’s Center told Jane to say, falsely, against him, namely, that he did not have consent even though Jane walked to John’s place, held his hand, kissed him, cuddled, and stayed over night with him only to accuse him the next day.
John and his legal team went to Court armed with many examples where Penn threw him under the bus and ultimately succeeded showing he could sue because Penn did not train the Hearing Panel, mishandled the investigation, treated him worse as a man of color, and discriminated against him as a man in violation of Title IX because Penn’s training materials, statements to the press from its provost and president, as well as its “Student Guidelines” showed a systemic gender bias as they presume the man is guilty from the get go. Importantly, the Court also allowed John to hold “discovery” to explore the open secret of many schools: that men who accuse women of sexual misconduct are silenced. That discovery might have required subpoenas to the many staff at Penn who deal with sexual misconduct, including Penn’s Title IX Coordinator, Penn’s Office of Sexual Violence Investigative Officer, Penn’s Office of Student Conduct, Penn’s Student Intervention Services (SIS), as well as Penn’s Office of Affirmative Action and Equal Opportunity Programs
The problems that John’s legal team solved may have included:
• Establishing that anti-male bias from feminist activists explains why John was Orientalized and sexualized by the supposed professionals at Penn Women’s Center, who branded him, as a man of color, a savage rapist.
• Exonerating John by carefully documenting, through texts and statements that Jane clearly behaved in a way that shows she consented and later confirmed to sex, even though she later said she had not consented.
• Proving Penn’s manuals discriminate against men in violation of Title IX.
Andrea David v. Neumann University
Citation: 187 F.Supp. 3d 554 (E.D.Pa. 2016).
Andrea sued Neumann believing she had been discriminated against because of her race by her professors. She no doubt believed this to be true but she had little evidence to prove it. She told the Court that Neumann was a racist school because two of her professors “created and perpetuated a racist environment by repeatedly referring to bone structures in the human skeleton as "slaves" and "slave masters"” in her class. Andrea also believed these professors made her exams tougher and not in compliance with Neumann’s student handbook which she took as a breach of contract.
This is not a sexual misconduct case but it illustrates the care with which men who are under sexual misconduct proceedings need to document their response—particularly if these men are going to also argue that the school breached its contract with them, or that being of color made their school treat them even worse than it would have treated them if they were white. Men at Neumann today, who face sexual misconduct, will deal with Neumann’s Title IX Coordinator as the Vice President for Human Resources and Risk Management and face the interesting question of whether or not Neumann’s commitment to the Franciscan human dignity helps or hinders their case.
The problems that Andrea’s legal team could not solve may have included:
• It is fundamental for most men responding to sexual assault allegations to specifically document every single instance where the school’s staff—while investigating and adjudicating—did not follow what it promised to follow in the student handbook. Here, Andrea did not document anything, so she could not state how Neumann breached her contract rights.
• It may be offensive to call bones “slaves” and “slave masters”, particularly if you descend from slaves, but that is not enough for you to prove you are being discriminated against because of your race. If your school treated you badly not just because you are a man responding to sexual misconduct but also because you are of color, you need many examples of this badness.
John Doe v. Swarthmore College
Citation: EDPA case No. 2:14-cv-00532-SD (Jan. 23, 2014)
John Doe enrolled in what was then one of the most prestigious liberal arts colleges in the United States, Swarthmore, a tiny place you never heard off outside Philadelphia. John learned to sing, act, direct, and speak Spanish while at Swarthmore. He also faced a serious accusation of sexual misconduct. John also interacted heavily with the old system of Sexual Misconduct adjudication at Swarthmore which led him to a hearing before a panel that included faculty members and students who relied on information that a Swarthmore employee gathered.
The publicly available materials from this Title IX reverse discrimination federal lawsuit show a traumatic experience where John went from being summarily expelled from Swarthmore, to suing Swarthmore claiming he was the staff’s scapegoat to atone for Swarthmore’s sexual assault crisis, to being called a rapist by Swarthmore’s own lawyers, to a resolution that includes Swarthmore publicly admitting it made mistakes in its handling of John’s case.
The problems that John’s legal team solved may have included:
• Lack of counsel during the internal investigation and adjudication.
• He trusted in the school investigators to be fair to him.
• He had no access to Swarthmore’s internal evidence prior to forcing Swarthmore to admit it had made mistakes in expelling him.
Karthik Saravanan v. Drexel University
Citation: EDPA case No. 17-3409 (Oct. 10, 2017)
Drexel never investigated Karthik’s claims that he was the victim of a female student’s sexual misconduct because Drexel male students who stand at the intersection of race and heterosexuality do not receive the same treatment as heterosexual white female students do. Drexel benefited the white woman in this matter in spite of an extensive record of her conduct which violated Drexel’s sexual misconduct. Drexel’s Office of Equality and Diversity turned all other administrative avenues available to the man against him and in her favor. Drexel further preyed on the man’s racial identity to ostracize and discriminate against him through a racist police force.
As Judge Kearney put it allowing this case to enter discovery:
“Mr. Saravanan's allegations of the staffs statements and alleged response to his claims against J.K. indicate Drexel's gender bias against Mr. Saravanan claiming sexual assault against a female. Mr. Saravanan's allegations against Drexel are arguably more egregious than the plaintiff’s allegation in Doe as Mr. Saravanan alleges multiple statements from a number of Drexel's staff "with the authority to institute corrective measures" indicating gender bias against male complainants of sexual assault.” (Doc. 17, p. 9).
The problems that Karthik’s legal team solved may have included:
• Establishing that the toxic combination of a politicized Office of Equality and Diversity at Drexel with Drexel’s own racist police force explained why a man of color was never seen as the victim of a white woman.
• Explaining to the Court that carefully documented statements from fellow Drexel students demonstrated Drexel’s anti-male bias.
• Explaining to the Court that the female complainant proved Drexel’s anti-male bias because Drexel never actually punished her for own violations of Drexel’s sexual misconduct policy.
• Asking for the adoption of the Doe v. Columbia Univ, 831 F.3d 46 (2nd Cir. 2016) standard for filing sexual misconduct lawsuits in Philadelphia.
Brian Harris v. St. Joseph's University
Citation: EDPA case No. 13-3937 (May 13, 2014)
This sexual misconduct case deals with the often asked question of suing the school for libeling and slandering the accused man. Here, slander and libel “per se” happened when St. Joe’s staff and the complainant, “Jane Doe”, “referred to Harris as the perpetrator of a sexual assault on Doe, even though they knew the allegations were false, or with reckless indifference to the truth or falsity of said allegations.” (AC, 113-114). Basically, had St. Joe’s branded Brian “alleged perpetrator” or as is common practice today “respondent” instead of “perpetrator” they would not have slandered (when speaking) or libeled (when writing) about him. It would be rare today, as schools are more skilled at covering their acts to have “slander per se”, but, if it happens, at least in Pennsylvania, it is possible to sue the school.
Today, a man facing sexual misconduct allegations at St. Joes would respond under St. Joe’s “Sexual Misconduct Policy: Policy Regarding Sexual Assault, Sexual Harassment, Sexual Exploitation, Domestic Violence, Dating Violence, or Stalking” and would be required to interact extensively with St. Joe University’s Title IX Coordinator or her deputies including police at St. Joe’s Office of Public Safety and Security.
The problems that Brian’s legal team needed to solve to sue for slander and libel might have included:
• Establishing that for a male student, the difference between the school saying “having sex with” and “perpetrating sexual assault on” is devastating to the male student.
• Establishing that because school-level sexual misconduct investigations and adjudications are not quasi-judicial (which is what the schools argue all the time) this means that what the school says during the process is not privileged as it would be in an actual criminal prosecution or trial.
Kevin Furey v. Temple University
Citation: 730 F.Supp.2d 380 (E.D. Pa. 2010)
Temple University expelled an undergraduate student, Kevin Furey, because of an altercation he had with Travis Wolfe, an off-duty police officer, near campus on April 5, 2008. This fight, during which a gun-carrying Wolfe “subdued” and “kicked” Kevin so hard that Kevin ended up in the ER, morphed into Kevin’s violation of Temple’s Code of Conduct for intimidation and disorderly conduct against Wolfe. During the hearing Temple’s Hearing Panel was “courteous to Wolfe and unchallenging of his testimony” while also refusing to ask Wolfe any of Kevin’s cross examination questions. “Then the panel aggressively questioned the plaintiff [Kevin] during his testimony.” The Panel recommended Kevin’s expulsion which Kevin appealed to the Review Board, a decision that landed on Temple’s Vice President of Student Affairs desk who decided to expel Kevin.
Judge McLaughlin, who would go on to serve in the US FISA court, found that the Hearing Panel acted partially, and with bias against Kevin. Kevin and his team won showing that pattern. And while this is not a sexual misconduct case, it shows a whole bunch of staff and faculty at Temple blatantly favoring a cop who injured a student over the student, just as staff tends to favor women over men in Title IX. Today, a man responding to sexual misconduct at Temple can have interactions with many people, including the Temple Title IX and ADA Coordinator who works in conjunction with Temple Campus Safety Services and Temple Wellness Resource Center. Every one of those interactions requires a legal team’s input particularly because as Kevin’s case states, Temple University is a public school subject to due process requirements when it investigates men accused of sexual misconduct under the Temple Code of Conduct.
The problems that Kevin’s legal team solved may have included:
• The massive pro-police bias that Temple staff and employees used.
• Facts that can look scandalous—like he took a machete from his car.
• Showing that Temple owed procedural due process—which is a specific set of procedures that Temple cannot skip—to each man responding to a claim of sexual misconduct.
Anthony Villar v. Philadelphia University (now part of Jefferson University)
Citation: EDPA case No. 2:14- CV-02558, (Oct. 29, 2014)
Anthony got expelled from Philadelphia University and claimed this violated his rights under Title IX because the complaint came from “Jane”, a woman he had dated for over two years. The problem was that Jane became upset when Anthony got her to agree to have sex with him without telling her first that he was already dating another woman. When Jane learned of Anthony’s new relationship she filed a complaint for sexual misconduct with Philadelphia University. The school staff then terrorized, lied, and decided to expel Anthony within 45 minutes of a sham hearing, while protecting Jane. The newly merged university now works as part of Jeff and has an Office of Academic Affairs, where an Assistant Provost for Student Affairs coordinates the Title IX reporting process.
The problems that Anthony’s legal team solved may have included:
• Dealing with the legal fall out from deciding to sue not just the school but also Jane--as Anthony’s vengeful accuser--who then claimed that it was unfair for her name to be identified in court, but not so his name.
• Because Anthony had no lawyer with him at the hearing and he was immediately expelled he had no time to obtain and put into the school record evidence of, for example, Jane’s consent and the school’s deplorable behavior. This left Anthony with little to show the Court.
Drew Kleinknecht v Gettysburg College
Citation: 989 F.2d 1360, 1366 (3rd Cir. 1993)
Drew’s mom and dad sued Gettysburg because he died from a heart attack during lacrosse practice and the school had not taken any care to protect the health of its student-athletes during practice. These facts are heartbreaking and a panel of judges, including a dissent from now Supreme Court Justice Alito, found Gettysburg College guilty.
Drew was in excellent health but “died of cardiac arrest after a fatal attack of cardiac arrhythmia” on the practice field at Gettysburg. There is no medical explanation for this sad event. There is explanation for why Gettysburg did not help Drew sooner. It suggests staff incompetence, lack of training, and inability to predict risk. To prove that, Drew’s family and legal team went as far as hiring an engineering expert to reconstruct how long it took for the school staff to run all over the place as he lay on the field, dying, and thus show the lie in Gettysburg’s claim that they helped Drew sooner.
On these facts, for an intercollegiate athlete engaged in “school-sponsored intercollegiate athletic activity for which he had been recruited” the Court decided that Gettysburg needed to have taken care of Drew and his fellow athletes. Gettysburg owed this duty to Drew because of the strong control that it had over Drew’s time, effort, and environment, or, as the Court put it, the “special relationship” between an athlete and his school, and the “foreseeability” that an athlete can have a heart attack while in practice, both of which support the “public policy” of holding Gettysburg responsible. Much like this case suggests that schools need to take special care of their student-athletes because of the burdens of being a student-athlete, so it might be that a school needs to take special care of a sexual misconduct respondent because of the burdens of that process.
The problems that Drews’s legal team needed to solve to sue Gettysburg (some of which may be present for a Sexual Misconduct respondent in what we believe would be a case of “first impression”) might have included:
• Channeling Drew’s family’s grief and anger at Gettysburg’s actions and mistakes into something good: litigation that establishes that while there is no “educational malpractice” schools can’t go and do anything they want with their students; particularly those, like athletes, whose entire lives revolve around a school program during which they are harmed.
• Establishing that for a there is a “special relationship” between a school and a male student who that school charges as a respondent of sexual misconduct which demands the school take affirmative steps to preserve and maintain the student’s ability to attain a meaningful education; this is a claim under the “affirmative duty” theory applying Restatement (Second) of Torts Sec. 314A, 320 (1965).
• Establishing that the school has a duty of care to not be negligent towards the student in terms of hindering his ability to attain a meaningful education; this is a claim under the analysis in Restatement (Second) of Torts Sec. 284 (1965).