Campus sexual misconduct hearings did not violate Title IX

The Second Circuit does not issue too many decisions on the grievance process at private colleges in sexual assault cases. This case sets forth the standards, but as a summary order, it lacks full precedential value. Still, the decision provides a glimpse into how these cases work.

The case is Doe v. Colgate University, issued on January 15. Three women accused Doe of sexual assault on campus. A hearing panel set up by the university sustained the charges, and Doe was expelled. Doe sues the school under Title IX, which prohibits gender discrimination in private schools. He raises a series of arguments, all of them rejected by the Second Circuit (Walker, Leval and Droney).

Title IX claims concerning disciplinary proceeding follow either the "erroneous outcome" theory or the "selective enforcement" theory. Doe goes with the erroneous outcome theory, claiming the outcome was motivated by gender bias. He claims that Colgate was under pressure to punish men because the college had a Sexual Climate Forum shortly before the women accused Doe of sexual misconduct. But that argument goes nowhere, as the college president told everyone that men and women can both be victims of sexual assault. Doe further claims the training for sexual misconduct hearing officers was biased against men because participants are told that investigators should refer to "complainants" when talking to the accused, but they should refer to "victims" or "survivors" when talking to the complainant. The Title IX coordinator also refers to complainants using female pronouns. But that evidence does not prove gender bias; it only reflects the statistical reality that most sexual assault victims are women. There is also no evidence that investigators are trained to be biased against men, as some men during these proceedings have been found to be innocent.

Doe's other objections to Colgate's process claim that the Campus Safety Investigator is a former female police detective who investigated sex offenses, which predisposes her to view men as perpetrators. For this proposition, Doe cites the investigator's testimony that in her experience, most victims tell the truth, and that when a period of time passes following an incident, the victim will forget specific details but not whether the incident actually happened. Doe also says the investigator asks women at these hearings, "can you think of any reason why these women would say this happened if it didn't." This evidence does not prove gender bias, the Court of Appeals says, as the memory theories do not show bias and the "any reason" question gives the accused a chance to explain why the charges are false, i.e., such as animosity toward the accused. Another argument claims Colgate practices gender bias because the female complainants were given their own waiting room with their friends, a benefit denied to Doe. That's not bias, either, the Court says, as Doe did not request his own waiting room.