Jauregui Law Office Quora Answer to "why is it that men sue their school under Title IX more often than women?"
Why does it seem like men sue their school for Title IX more often than women sue theirs?
First off, what is Title IX?
Title IX is a federal law that promises to all students that their educational environment will be free of sexual hostility.[1] For decades, most of Title IX focused on securing representation of women’s sports teams. Since about 2011, however, Title IX has focused on policing all forms of sex on campus. Likewise, the #MeToo #Times’up activism from 2017 has only intensified Title IX. While some of these efforts were resounding scandals—for example the claim that the UVA Lacrosse team gang raped a woman[2]--others, no doubt, brought about by courageous individual men and women honestly claiming assault in their school, have improved the campus for all. However, the problem with today’s Title IX’s focus on sex, is that it responds best to the powerful; a group which includes lazy staff, the sons of donors, as much as women activists.
In addition, Title IX has developed its own sex lingo, calling rape or sexual harassment victims “complainants” and those who are alleged to have raped or sexually harassed “respondents.” The whole trauma, which in employment law under Title VII is called sexual hostility, is called “student misconduct” by the staff administering Title IX and their lawyers. The stain on a respondent’s record is called “disciplinary note/action.”
Second, what does Title IX guarantee to someone accused of misconduct?
Men are the overwhelming members of the sexual misconduct respondent cohort. Sexual misconduct in college or university consists of a spectrum of behaviors that are controversial—did the man violate Title IX with a suggestive text? vs. The man clearly violated Title IX when drugging a woman. In the gray cases, men sue their schools when they become scapegoats—that is, when the school assumes their guilt (their status as sexual predators) because they are men.[3] Title IX forces the school’s Title IX staff to assume men’s innocence and states that assuming men-always-rape is unfair.
Men have two legal theories to prove school unfairness. Otherwise, they will likely be suspended as well as expelled, and will have to explain this disciplinary mark for the rest of their lives (even if they are completely innocent) for grad school admissions, security checks, Supreme Court nominations, etc… Thus, to ensure fairness, men’s lawyers need to prove their school acted with gender bias against the men. To do so, as there is no Supreme Court case on point, the current paradigm comes from Yusuf v. Vassar a case from way back in 1994 that describes how to implement the Supreme Court’s holding in Gebser v. Lago Vista that students can sue their school for sexual harassment, including for harassment by a fellow student.[4]
The two main Yusuf [5] theories are Erroneous Outcome where respondents’ attorneys show that "the claim is that the plaintiff was innocent and wrongly found to have committed an offense" (id); that is to say that you got disciplined by mistake because they assumed that as the man you were the rapist as all men do that. The other theory is Selective Enforcement where respondents’ attorneys “… allege that he was treated more harshly than similarly situated persons of another race” (id) meaning that, for example, the son of a big donor was accused but did not get the same discipline.
Third, what is it that Title IX guarantees to victims of misconduct:
Women are the overwhelming members of the “complainant” cohort. That, sadly, means they report the most instances of conduct that turns the school into a sexually hostile environment for them. Not surprisingly, many cases involve binge-drinking, and may be subject to any party changing his or her mind after the fact. There is a lot of academic and political controversy over that.[6]
Whether you are a man or a woman, gay or straight, complaining of sexual misconduct, you inherently complain not only against the other human being with whom you interacted, but also against the school and its staff. You have a high bar to meet to make that complaint a legally actionable claim which is why women sue less. The standard you have to meet requires you to show that the school officer whom you told that there was a known rapist lose on campus did nothing with your complaint. That standard is called “deliberate indifference.”[7] It is the same standard that applies to prisoner’s claims of abuse against prison wardens—watch, for example, how that standard fuels the plot of the Shawshank Redemption.[8] It is very difficult to meet. But complaining to the Title IX coordinator does work. Thus, while women may obtain some form of protection, for example by suspending the respondent, trauma stays, and the Title IX staff stay employed with little fear of retribution. This explains why women complain more, internally, but sue less, externally. The standards are tough for both but almost impossible for women (assuming women are most complainants).
Finally, what do Men and Women Gain if they sue Under Title IX?
Most men want their life, their record, and their electronic signature to go back to the way it was before they experienced the traumatic situation where their school staff made them a scapegoat and ignored evidence proving their innocence. Men should run to the courthouse the second the Title IX staff hides evidence, fails to interview witnesses, does not allow cross-examination or fails to accommodate them. Men also sue for attorney’s fees and sometimes for the worth of the time of their lives lost to suspension or expulsion. Thus, men gain their privacy back and get to keep their career.
Women, in contrast, can only sue their school because the school had notice that there was (in the most clear scenario) a rapist lose on campus and did nothing to protect them form him. Women sue to have their story heard and their cohort protected. Women gain retribution for their pain. Women can also get their attorneys’ fees paid.
While I am unaware of a single Title IX case that has reached a jury since the 2011 new regulations, I strongly believe that every single one of these claims—be it from the complainant or the respondent—requires careful, professional, and outside of the school attention so that men and women can use Title IX to regain their story.
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.
[1] Title IX, codified at 20 U.S.C. § 1681(a), provides that "[n]o 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 educational program or activity receiving Federal financial assistance."
[2] https://en.wikipedia.org/wiki/A_Rape_on_Campus
[3] Because Title IX prohibits, under covered circumstances, subjecting a person to discrimination on account of sex, it is understood to "bar[ ] the imposition of university discipline where gender is a motivating factor in the decision to discipline." Doe v. Columbia Univ., 831 F.3d 46, 53 (2d Cir. 2016) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)).
[4] https://www.law.cornell.edu/supct/html/96-1866.ZO.html
[5] https://law.justia.com/cases/federal/district-courts/FSupp/827/952/1458720/
[6] The most interesting legal-academic discussion on this has feminist pitted against feminist. See, e.g., “…in schools and shopping malls all over the United States, women faced the same male domination that they do when living in the midst of a civil war or international invasion. Under that domination, they may give consent to sex, but that consent is bankrupt from the moment it is given. If they later retract it and declare that the sex was unwanted, they should be believed.” Janet Haley: Currents: Feminist Key Concepts and Controversies. The Move to Affirmative Consent, in Signs: Journal of Women in Culture and Society 2016, vol. 42, no. 1, available at:
https://www.journals.uchicago.edu/doi/pdfplus/10.1086/686904
[7] https://www.gwlr.org/deliberate-indifference-why-universities-must-do-more-to-protect-students-from-sexual-assault/
[8] https://en.wikipedia.org/wiki/The_Shawshank_Redemption
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