After Doe v. University of the Sciences, what rights do men responding to sexual misconduct in Pennsylvania, New Jersey or Delaware colleges and universities have?
Three radical and disruptive improvements to the Title IX sexual misconduct process just became the law for schools in the Pennsylvania, New Jersey and Delaware region. They all come from a decision by the Third Circuit Court of Appeals called Doe v. the University of the Sciences (1). These are new rights for respondents of misconduct.
As a result of this decision, every single man responding to sexual misconduct allegations and investigations in his school (and let’s be frank mostly everyone responding to sexual misconduct is a man) needs to stop, lawyer up, and consider this:
1. Respondents to Sexual Assault can File Cases in Federal Court:
For ages Title IX investigators and coordinators laughed at the risk that the men they were investigating for sexual misconduct would take them to court. And they were justified, if cruel, to do so. For ages courts in Philadelphia, Reading, Wilmington, Camden, Newark and Trenton required men who believed they had been expelled for false reasons to invest an enormous amount of energy on what was, effectively, a gamble based on a legal technicality: That they would win when their schools would say that the student did not have enough evidence to sue them, while, of course, the evidence, was hidden away in the school’s files. (2). No more. Now students need to file lawsuits in these federal courts simply stating facts that are “plausibly” related to their being treated badly—i.e., assumed guilty—because they are the male in a sexual misconduct complaint. As the Court put it in the USciences case:
“We agree with the Seventh Circuit and “see no need to superimpose doctrinal tests on the [Title IX] statute.” See id. at 667. Thus, we adopt the Seventh Circuit’s straightforward pleading standard and hold that, to state a claim under Title IX, the alleged facts, if true, must support a plausible inference that a federally-funded college or university discriminated against a person on the basis of sex. Although parties are free to characterize their claims however they wish, this standard hews most closely to the text of Title IX. See 20 U.S.C. § 1681(a). Doe’s complaint contains plausible allegations supporting the reasonable inference that USciences discriminated against him on account of his sex. His allegations fit into two categories. First, Doe alleges that USciences yielded to external pressure when implementing and enforcing the Policy. Second, he alleges that sex was a motivating factor in USciences’s investigation and decision to impose discipline.” Doe v. University of the Sciences, slip op. at 9.
2. Respondents to Sexual Assault are Entitled to have their Assault Experiences Investigated:
Historically, men would tell Title IX investigators, or the police, that they were drunk during a sexual episode with their complainant, or even that the complainant had touched them in a sexual way that they did not consent to. School investigators would consistently either laugh or certainly ignore these facts which are reports that the man responding to sexual misconduct was also a victim of sexual misconduct. No more. Now, students who were drunk and who thus could not consent to their complainant’s sexual act, as well as those who simply did not want their complainant to sexually act on them, need to file lawsuits in federal court when their schools laugh at them or ignore them for telling them so. (3). That is, females raping males now counts, and so does female on male sexual harassment. As the Court put it in the USciences case:
“Doe plausibly alleges that USciences enforced the Policy against him alone because of his sex. In Baum, the court found that the plaintiff stated a viable claim because, “[w]hen viewing th[e] evidence in the light most favorable to [the accused student], . . . one plausible explanation is that the [b]oard discredited all males, including [the accused student], and credited all females, including [the accuser], because of [sex] bias.” 903 F.3d at 586. Doe’s allegations of sex motivated investigation and enforcement are like the plausible allegations in Baum. And when Doe’s allegations about selective investigation and enforcement are combined with his allegations related to pressure applied by the 2011 Dear Colleague Letter, we conclude that he states a plausible claim of sex discrimination. See Purdue, 928 F.3d at 668–70; Baum, 903 F.3d at 586–87. For these reasons, we will reverse the District Court’s order dismissing Doe’s Title IX claim.” Doe v. University of the Sciences, slip op. at 12
3. Respondents to Sexual Assault are Entitled to Cross-examination of the Complainant During live Hearings:
Controversially, Title IX and sexual misconduct in college have pitted two interests against the other. On the one hand the US legal tradition—including the constitution’s confrontation clause—says and has always said that persons in the US can face their accuser to cross-examine them. On the other hand several persons feel that for a woman to be cross-examined about her claims of sexual misconduct is for the woman to be re-traumatized about her claims of sexual misconduct and thus that she should be afforded special treatment. On the third hand schools were taking advantage of this tension to do as little as possible. Well, no more. Now, every student responding to sexual misconduct in any school, private or public, has a right to cross examine not just the student complaining, but also all the witnesses backing up that complaint. This is in fact what would happen during a criminal proceeding. (4) Never again will a man in Philadelphia, or elsewhere, face a disciplinary hearing with his accuser absent. Never again will a college student in Pennsylvania not be able to ask questions to show that his complainant is wrong. As the Court put it in the USciences case:
“To be sure, the investigator listened to Doe during her two interviews with him. But USciences did not provide Doe a real, live, and adversarial hearing. Nor did USciences permit Doe to cross-examine witnesses—including his accusers, Roe 1 and Roe 2. As we explained above, basic fairness in the context of sexual-assault investigations requires that students accused of sexual assault receive these procedural protections. Thus, Doe states a plausible claim that, at least as it has been implemented here, the single-investigator model violated the fairness that USciences promises students accused of sexual misconduct.” Doe v. University of the Sciences, slip op. at 20-21.
In this environment there are finally more rights, which mean better rights that barely level the playing field, for men responding to sexual assault. That said, if a man responding to sexual assault is guilty of rape, then he is still guilty of rape. But if he is falsely accused, raped himself, or accused of gray rape, or charged with outrageous and exaggerated complaints, or if his witnesses got ignored by the Title IX investigator, then this man needs to immediately lawyer up to come out with a sliver of justice.
That the student sexual misconduct field in Pennsylvania, New Jersey, and Delaware is a bit more level, still does not mean everything is easy for male students. Just as these men should not perform surgery on themselves simply because now they are guaranteed access to an Operating Room, these students should not appear at misconduct proceedings on their own. These men need Title IX lawyers to deal with the misconduct process. Using a lawyer to argue these new Title IX rights now, is like using an anesthesiologist and a surgeon to undergo surgery: It is reasonable and expected in a modern society and while it does not guarantee, it does suggest a better healing will come.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. The entire opinion can be found here: https://www.studentmisconduct.com/news/john-doe-v-university-of-the-sciences-united-states-court-of-appeals-for-the-third-circuit-no-19-2966
2. That schools get away with a lot simply claiming that there is no evidence other than the evidence they will not disclose has been as controversial as it is facetious.
3. We have long worried about the fact that males do not talk about sexual assault that has them as the victim, or if you will, as the agent of someone else’s desire. See, e.g., https://www.studentmisconduct.com/news/what-does-a-man-under-investigation-for-sexual-misconduct-at-his-college-experience
4. The USciences decision embodies many concerns that we have lobbied for including in comments to the Department of Education’s proposed rule making process for the new Title IX regulations which also embody this need for cross examination., See, TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR SUPPRESSION OR ADMISSION DURING HEARINGS. Available at: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris and see, https://www.studentmisconduct.com/news/client-alert-when-do-the-new-title-ix-rules-start-and-do-they-help-men-under-investigation-for-sexual-harassment. That said it could be the case that the school still gets away with a lot because they can still use the “preponderance” standard. In effect the student respondent gets a criminal right of confrontation with a civil standard. See, e.g., https://www.studentmisconduct.com/news/why-are-men-responding-to-sexual-misconduct-investigations-in-college-under-title-ix-entitled-to-or-even-deserving-of-something-better-than-a-probable-cause-system