In the #MeToo era, when is it clear that a man in school responding to misconduct is a sexual predator who should be expelled and when is it clear he’s the victim of bias?
Title IX promises that both men and women will study in a college or university that is free from sexual hostility. (1). But that promise is so broad that it makes for a very unclear application of the law. Currently, that application biases against men and thus strongly blurs the line when what’s going on is that the man experiences male bias.
Activism, no doubt because of the current and overwhelming stream of data about men in power and sexual assault (2), has taken the Title IX crusade to the next level—by shifting campus politics to the other end, an end where the slightest act that anyone perceives as sexually uncouth becomes improper and sexual. (3). If nothing else, in order to keep their jobs and to increase the funding for their department, Title IX staff responds catering to that activism. (4). They do so aggressively investigating, prosecuting and convicting any male respondent on misconduct involving events that are either total fiction, questionable gray areas, or, in rare cases, actual instances of deplorable male students who are just out of control bad guys. Clarity of guilt matters little at that point.
Thus, while the first two kinds of male respondents, those facing fictional accusations and those facing gray accusations (classically the she’s changed her mind conundrum) need to immediately lawyer up to save their career, and even the third type of male respondent, the rare type of male who is an out of control bad guy, also has rights.
Is it difficult though to differentiate between the three? Not really. Yet schools consistently fail to so differentiate. As if there was no spectrum. (5) Consider for example a very clear case at the worst end of the sexual misconduct spectrum: Harvey Weinstein, the current icon for the #MeToo movement who faced, in New York alone, a huge amount of horrific accusations from many women who would have rather not spoken up against him. (6). These extensive accusations, allowed into the trial to show that Mr. Weinstein indeed has the pattern of behavior of a sexual predator, include shocking, disturbing and deplorable stories that suggest the man is sick, including:
“• One actress accused Mr. Weinstein of raping her in the early 1990s. A second woman said he forced oral sex on her in 2006. A third accused him of raping her in 2013.
In all, six women testified against Mr. Weinstein at his trial:
• Annabella Sciorra testified that after a dinner party in the winter of either 1993 or 1994, Mr. Weinstein barged in to her Manhattan apartment and raped her. The alleged attack was too old to be prosecuted separately as rape under New York law.
• Miriam Haley told jurors that in 2006 the producer forced oral sex on her at his apartment in Lower Manhattan, despite her protests. Mr. Weinstein was charged with one count of criminal sexual act and predatory sexual assault involving Ms. Haley, who previously went by the name Mimi Haleyi.
• Jessica Mann testified that Mr. Weinstein injected his genitals with an erection medication and raped her in a hotel room in Midtown Manhattan. He was charged with first- and third-degree rape, and predatory sexual assault involving her allegations.
• Dawn Dunning accused Mr. Weinstein of touching her genitals in a hotel room in Manhattan’s TriBeCa neighborhood.
• Tarale Wulff testified that Mr. Weinstein pulled her into a secluded stairwell in a lounge in Manhattan’s SoHo neighborhood and masturbated.
• Lauren Young told jurors that the producer pulled down her dress, groped her breasts, masturbated and ejaculated onto the floor in a hotel room in Los Angeles.” (7).
Unlike the Weinstein jurors, however, male student respondents to sexual misconduct and the Title IX staff who prosecute them hardly, if ever, face such a clear record that they behave like sick sexual predators. Most often, these students and their complainants fall along the middle and the opposite end of the misconduct spectrum. Facts are few and mostly circumstantial. Thus, accusations that men face in school are less clear and, of course, unlike Mr. Weinstein’s, they do not stretch over years and years.
But the problem male respondents of student sexual misconduct on campus face consists of Title IX staff and significant parts of the university’s culture placing them, the male respondents, automatically, in the same cohort as Mr. Weinstein. That is, without a spectrum, absent common sense, hard-core, paying no attention to the actual facts underlying the complaint. Thus male respondents are punished just by the fact that the respondent is a man, with the same gender as Mr. Weinstein. The student misconduct complaint becomes a replay of the Weinstein trial, but in school, and with no due process.
The impact of Mr. Weinstein’s fall on the business world is loud and good. “Some merger agreements now include a “Weinstein Clause” in case misconduct emerges. Companies can even purchase a type of “disgrace insurance” against wayward executives.” (8) Yet students do none of this risk mitigation while they know their school will foist the harshest sexual misconduct process on the man--as if that student is Mr. Weinstein. That’s the essence of male bias and the reason why male students lawyer up while in school and run to the courts after: to win back their independence from deplorable men, to be treated as individuals, with fairness. Otherwise, the future becomes as grim as #MeToo has made it for businessmen: “Many of the accused faced professional consequences — legislators resigned, chief executives were ousted. That was an uncommon fate for those accused of similar misdeeds before the Weinstein reporting, when such matters were often swept under the rug.” (9).
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. Title IX is brief and says: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
— Cornell Law School's Legal Information Institute (20 U.S. Code § 1681 - Sex) more available at: https://en.wikipedia.org/wiki/Title_IX
2. Including, for example, the exaggerated data available here: https://www.nsvrc.org/node/4737
3. For sure the same #MeToo organizations that—rightfully—took down Mr. Weinstein are behind the #KnowYourTIX movement which—regrettably—biases against men.
4. This is so prevalent that a standard proof of Title IX violations against men requires showing that the Title IX staff—or the whole school—has been under pressure from activists, the press and others (including investigation from the Department of Education’s Office of Civil Rights) to convict men of sexual misconduct. See, e.g., https://www.thefire.org/how-the-pressures-of-title-ix-compliance-have-chilled-my-college-campus/
5. Male respondents need to pay close attention to the way their schools’ staff behaves during the investigation of student misconduct—the method matters a lot in terms of being found innocent or guilty. See, e.g.: https://www.studentmisconduct.com/news/quora-answer-how-can-you-best-tell-if-a-title-ix-investigation-is-using-techniques-that-are-based-on-science-and-evidence-of-effectiveness
6. Jan Ransom, Harvey Weinstein is Found Guilty of Sex Crimes in #MeToo Watershed, The New York Times, February 24, 2020, available at: https://www.nytimes.com/2020/02/24/nyregion/harvey-weinstein-trial-rape-verdict.html?action=click&module=Top%20Stories&pgtype=Homepage
7. Id.
8. “Companies can also purchase disgrace insurance to limit damages from incidents like the kind that cost Imperative Entertainment LLC $10 million in 2017 after Kevin Spacey became embroiled in a sex scandal.” Rebecca Greenfield, The #MeToo Movement Is Much Bigger Than The Weinstein Verdict
February 24, 2020, Bloomberg News, available at: https://news.bloomberglaw.com/business-and-practice/what-harvey-weinsteins-guilty-verdict-means-for-metoo-movement?
9. Id.