Why did Colgate University just lose a major Title IX case?
Colgate just lost a major Title IX case because it expelled an apparently innocent man.
The most recent Title IX lawsuit against Colgate University--a place that, according to its website https://www.colgate.edu/, actually should be considered as “a distinctive, leading university known for its intellectual rigor, world-class professors, campus of stunning beauty, and alumni famously loyal to their alma mater”--presents an incredible case study on what went horribly wrong for a man who enrolled there, and then answered a sexual misconduct allegation, without having lawyered-up first:
Basically, the male Colgate student faced an investigation from a Colgate employee, this lady, https://www.colgate.edu/about/directory/vbrogan, who took the original complaint from a female Colgate student and investigated its academic impact, and this gentleman, who in his role as a New York State Trooper is active in sexual assault prevention, is mentioned in this national news article, https://www.motherjones.com/crime-justice/2018/09/inside-the-special-police-unit-thats-transforming-how-cops-investigate-sexual-assault/ and who handled the criminal part of this complaint.
The result of Brogan and Dougherty’s work led to the man’s expulsion from Colgate.
Luckily, the federal court for that part of New York just found that a jury must now decide if Colgate broke the law when it expelled this man. Colgate now has to explain to a jury if Brogan and Dougherty’s work led to this man’s expulsion from Colgate because he actually is a rapist, or, as it seems more likely, because of their male bias which led them to crucify him. In effect, a jury will now decide just why Brogan and Dougherty destroyed this man’s life in spite of the very many reasons why this man is innocent. (Press coverage of the decision available here: https://www.usnews.com/news/best-states/new-york/articles/2020-04-30/lawsuit-claims-anti-male-bias-in-campus-sex-assault-probe).
The powerful reasons to not expel this man, and the apparent fact that Brogan and Dougherty completely ignored them, must instill in every single man the notion that they must to lawyer up, immediately, when accused of sexual misconduct. (We have discussed, extensively, the fundamental need for men responding to misconduct to have lawyers, here: https://www.studentmisconduct.com/news/jauregui-law-firm-quora-answer-what-are-the-chances-that-todays-college-student-facing-a-misconduct-or-harassment-investigation-under-title-ix-will-win-the-investigation-or-his-lawsuit
Consider some of what Doe alleges that Brogan and Dougherty did to get him expelled:
1. They took a complaint from a woman who said she had multiple forms of sex, over one night, with Doe, but then said that she did not agree to just one of those many events.
2. They recorded his conversation with her without letting him know about it to trap him.
3. When they failed to “trap him” they then ignored the fact that in this recorded conversation Doe completely, and credibly, denied anything wrong had happened. As the judge put it: “In that call, Plaintiff denied that their sexual contact was non-consensual, indicated that he remembered Roe giving “verbal consent … like multiple times,” that he recalled Roe initiating the third act of sexual intercourse, and that he did not remember her saying “no.””.
4. They ignored the fact that according to Doe, it was actually the woman who assaulted him. As the judge put it: “Plaintiff claims that, at approximately 4:30 a.m., he awoke to Roe’s hand brushing his penis.”
5. They ignored the fact that according to Doe, everything was consensual. As the judge put it: “Plaintiff, to the contrary, contends that the kissing, foreplay, and episodes of sexual intercourse were consensual.”
And well, you could still say that the stuff in 1-5 is a matter of patriarchy-constructed opinion. BUT:
6. Exactly in line with every single sexual misconduct case against a man that I know of, Brogan completely ignored the inescapable empirical facts of Doe’s innocence. As the judge put it: “For example, Roe claimed that she accompanied Plaintiff back to his room around 12:30 or 1:00 a.m.; however, Plaintiff did not swipe his gate card to his residence hall until 2:03 a.m. Similarly, Roe maintained that she left Plaintiff’s room at 4:30 a.m., but Defendant’s records indicate that she did not return to her residence hall until 6:12 a.m. Furthermore, Brogan did not ask Roe to respond to Plaintiff’s version of the events, even though Plaintiff responded to Roe’s version of the events in order to defend himself from her allegations.”
THE HOPE IS THAT THIS CASE WILL GO TO A JURY. It poses profound questions about the nature of humanity and about higher ed’s approach to gendered constructions of sexual activity, for, in addition to the cruel, banal way in which Brogan and Dougherty railroaded Doe, for being a straight man, Colgate, it seems, does not punish women who sexually assault and harass as harshly as it punishes men like Doe. That is one of the many jewels in this sordid case. (We have discussed why men sue more than women, here: https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-to-why-is-it-that-men-sue-their-school-under-title-ix-more-often-than-women)
As the judge put it: “Dean Taylor noted that Defendant “generally regard[s] sexual offenses as being on a continuum of gravity[.]” She attempted to distinguish the female respondent’s case by explaining, “[t]hat case did not involve penetration of any kind and therefore did not constitute non-consensual sexual intercourse within the definition of EGP policy.”. In fact, Dean Taylor further noted, Defendant has not had a single case where a female has been accused of non-consensual penetration of any kind or where a male has claimed to be the victim of non-consensual penetration of any kind.”
As the judge put, with the cold logic of a court which sometimes makes a lot of sense, Dean Taylor’s position that the worst sexual offenses require forcible penetration with a part of the defendant’s body is not a viable argument to justify gender-based leniency: “Due to biological differences between men and women, a female respondent could never be found responsible for this exact conduct. Thus, for purposes of Title IX selective enforcement litigation, the female respondent is a direct comparator to Plaintiff because they both were found responsible for “Sexual Assault” under the EGP definition. When considering the female respondent as a direct comparator, Plaintiff and she should have been assessed similar or equal penalties.” [Internal citations ommited].
THE HOPE IS THAT HAD DOE LAWYERED UP FROM DAY 1, none of this cruelty would have happened to him because Doe’s lawyers would have expected that Brogan and Doherty were going to go all out to expel him, no matter his innocence.
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: