Sex Discrimination

Interesting New Title IX Sexual Assault Hearing / Sex Discrimination Opinion

"[P]laintiff has ... made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex ...."

|The Volokh Conspiracy |

From Doe v. Rensselaer Polytechnic Institute, decided today by Judge David N. Hurd (N.D.N.Y.):

The Court understands many of the impulses that may cause a school to favor women over men in the context this case presents. After all, claims of sexual assault like Roe's—and Doe's—are often difficult to prove. By their very nature, these claims typically involve a level of privacy that undercuts the availability of witnesses, to make no mention of the stigma that attaches so easily to sexual assault victims, the profound psychological trauma that inevitably follows sexual assault, or the age-old stereotypes that call listeners to disbelieve complainants—especially, historically speaking, women. Much work must be done to ensure that sexual predators are called to justice, and the Court does not shrink from that truth.

Instead, it is to this Court's grudging relief that its task is not to resolve the nettlesome question of how to properly create an environment such that women, who for far too long have been victimized by those stigmas and stereotypes, can feel secure enough to seek justice without allowing an accusation against a man to carry the day on its own. Rather, it is enough to say this: whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.

As the facts now stand, Doe has made a showing sufficient to establish a reasonable likelihood that RPI has come down on the opposite side of that truth, no matter how dysphonic their chosen path may be when this Court attempts to harmonize it with plaintiff's rights under Title IX. As a result, plaintiff has also made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex, a harm that damages cannot make whole.

Against Doe's protected rights, RPI's showing of the equities amounts to hollow portents of rampant sexual assault and the impermissible assumption that plaintiff is already guilty despite not having so much as a hearing on a matter of grave import to his future…. Accordingly, plaintiff's motion for a preliminary injunction must be granted. Defendant will be enjoined from proceeding in its hearing against plaintiff until its treatment of plaintiff has been tested and this case has run its course….

There's a lot that leads up to this conclusion, including the question whether the new Department of Education Title IX rules should be applied in this case; you can see it all in the full opinion. Here are the facts:

At all relevant points for this case, Doe has been a student at RPI. Plaintiff alleges he chose defendant because it has a high-ranking engineering pedigree and the various technological assets that ranking brings with it. However, plaintiff did not choose to live on defendant's campus, instead opting to live nearby in Troy, New York.

In November of 2019, Doe, a senior, and female RPI freshman Jane Roe ("Roe") met through the online dating application Tinder. Plaintiff and Roe spoke through varied electronic media periodically throughout the end of the Fall 2019 semester and over the winter break in advance of the Spring 2020 semester. Upon returning to Troy in advance of the Spring 2020 semester, plaintiff and Roe met in person and had consensual sex on multiple occasions in January of this year.

One morning after Roe had slept over at Doe's apartment, Roe alleges that she discovered that plaintiff had been using his cell phone to record video of her as she was dressing. Roe claims she was immediately disturbed by plaintiff's surreptitious filming, and asked a friend to pick her up from plaintiff's apartment. That friend then apparently confronted plaintiff about the video, and plaintiff reassured him that the video had been deleted from the phone.

Either late in the night of January 22 or early in the morning of January 23, 2020, Roe invited Doe to her dorm room again. Roe claims that she agreed to discuss with plaintiff her anger at his having filmed her, which was a conversation that she did not feel comfortable having at his off-campus apartment. Plaintiff alleges that he was too drunk to drive, so he walked to her residence hall and joined Roe in her room.

Once there, both plaintiff and Roe agree that plaintiff had multiple drinks of vodka. Plaintiff then alleges, and based on her own eventual Title IX complaint against him Roe does not disagree, that the two of them had consensual sex.

Roe and Doe's narratives of their encounter that night and morning diverge at approximately 3:00 a.m. To hear plaintiff tell it, Roe remained sober the entire night while she plied him with excessive amounts of alcohol. He alleges that Roe eventually began to pressure him to have sex with her again, but he refused because he had only brought one condom and did not want to have unprotected sex.

However, Doe eventually gave in and had sex with Roe again. Plaintiff claims that he remembers only pieces of this round of intercourse, but he claims to distinctly remember that Roe asked him to put his hands around her neck, even though this made him uncomfortable. Plaintiff eventually complied, if only briefly. Roe agrees that she requested that plaintiff put his hand on her neck and provide pressure, but she claims that this happened during their first, consensual encounter on that night.

Doe further alleges that Roe then began to pressure him into having anal intercourse with her. He also claims that eventually, despite his recurring protest that he did not wish to engage in intercourse without a condom, he had anal sex with Roe for about ten seconds" before stopping because he felt uncomfortable. Plaintiff claims that after he and Roe concluded their second intercourse, he needed to ask her to get him water because he was too drunk to get out of bed.

Roe agrees that Doe had trouble getting out of her bed at one point during the night of January 22. She also noted during an interview with a Title IX investigator that plaintiff had been "getting kind of weird" and that he informed her he was under the influence of "a couple substances," which caused him to act "different from usual."

The next morning, plaintiff left Roe's room because she needed to go to class.

Plaintiff alleges that the psychological damage from being pressured into sex with which he was not comfortable forced him to take a medical leave from school.

By contrast, Roe alleges in her Title IX complaint that after the initial consensual encounter, she and Doe began to argue. In the midst of this argument, she asserts that plaintiff again put his hand around her neck and squeezed—this time both in a non-sexual context and without her consent—which caused Roe to be afraid for her safety. She further alleges that between 3:00 a.m. and 5:00 a.m., plaintiff rubbed his penis against her back, buttocks, and legs without her consent. At her eventual interview with the Title IX investigator assigned to her case, Roe also said that she may have unwillingly engaged in sexual intercourse with plaintiff because she was afraid he would hurt her if she denied him and in the hope that if she complied he would just go to sleep and the encounter would be over.

But according to Roe, her compliance was not the end of it. At about 9:00 a.m. on January 23, 2020, Roe alleges that Doe again engaged in sexual activity with her without consent. Eventually, Roe complained to plaintiff that the sex was painful, at which point plaintiff apparently continued intercourse while asking her if she would like him to stop. Roe responded that she would, and plaintiff continued for a "couple more seconds longer" before stopping.

On January 27, 2020, Roe's resident advisor informed RPI that a sexual assault had allegedly taken place on January 23, 2020. On January 31, 2020, defendant notified Doe that it was initiating a Title IX investigation against him as a result of that incident. On June 9, 2020, plaintiff filed his own Title IX complaint against Roe, alleging that he was too intoxicated to consent to sexual activity on the night of January 23. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, and interviewed again concerning plaintiff's complaint on July 17, 2020.

On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school's August 24, 2018 Student Sexual Misconduct Policy ("the 2018 policy") by sexually assaulting Roe. As was his right, plaintiff requested a hearing to challenge the initial finding that plaintiff had violated defendant's sexual misconduct policy.  That same day, defendant dismissed plaintiff's Title IX complaint against Roe, finding that he had failed to establish his allegations by the same standard.

In particular, RPI found that Doe's participation in complex conversation, recall of details, ability to leave and re-enter Roe's residence hall at 2:30 a.m. to smoke, and his failure to prove that he did not willingly consume alcohol or initiate sexual activity with Roe made his complaint insufficiently credible. In fact, plaintiff was recorded on a campus security camera leaving the residence hall at 2:30 a.m., and according to defendant his gait appeared steady on the captured footage, although plaintiff paused while climbing the stairs for an unknown reason.

Doe timely appealed RPI's determination on August 11, 2020, requesting a hearing as to his claim's dismissal. In particular, he argued that defendant: (1) overlooked facts in Roe's July 17, 2020 interview establishing that he had consumed alcohol and smoked marijuana before arriving at Roe's dorm, drank vodka "many times" while in her room, and "had trouble getting off" Roe's bed; (2) erroneously relied on the irrelevant determination that there was insufficient evidence that plaintiff was supplied alcohol against his will; and (3) erroneously relied on the irrelevant determination that plaintiff failed to prove he did not initiate sexual activity.  Defendant denied plaintiff's appeal on August 25, 2020, claiming that plaintiff had failed to demonstrate an error in the denial that would merit a hearing….

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  1. What other examples are there where Title IX is applied for a man’s defense? Or other sorts of legislation attempting for the same goal of civil rights applied to a non-standard defendant?

  2. YES!!!!!

    This will get very interesting because they will try to flunk him out for something else instead, but it is about time for this sort of injunction.

  3. ef that its task is not to resolve the nettlesome question of how to properly create an environment such that women, who for far too long have been victimized by those stigmas and stereotypes,
    >>>>>>>>>>>>>>>>>>>>>>>>

    Are their victims of sexual harassment/assault? Yes of course. Is the whole industry and dynamics that has grown around the topic overall one where women are victims? Nope.

    What we’re seeing is a fascinating example of biology and evolution playing out among semi intelligent talking monkeys. Men signal their virility and evolutionary fitness with fancy cars and tallies of how much women they bed. Women OTOH signal their evolutionary fitness by taking the opposite tack of an aura of inaccessibility and rejection of potential mates.

    In the olden days women would pursue this strategy by taking on customs (that are ironically blamed upon evil men by leftist historians) that emphasized their purity and virginity. Today many play this same game racking up points telling their friends or Oprah, or occasionally courts how many disgusting unworthy men they rejected or harassed them. The more she is ‘victimized’ and the more lurid or high status the victimization and alleged victimizer the higher her status goes up. Thats why they are working overtime to constantly expand the scope of things that can be considered sexual offenses. And of course why we’ve had skyrocketing cases of prominent males being accused to the point where its practically a rite of passage.

    Its all an age old game. Amazing how clear things become when you look at seemingly complex social behavior from a logical scientific view.

    1. The problem is that they are doing this while drunk out of their minds.

      1. That is not a problem.

        1. No, it is a design feature.

  4. I advise men just to not go to college these days. It is just too dangerous, especially for white men. Better off going into a trade or doing an apprenticeship.

    If a man does want to get into a “white collar” profession, avoid liberal arts schools at all cost. Keep your head down at a commuter community college for two years then transfer to the biggest state school you can find. Commute there. Don’t get into the social scene. Graduate as quickly as possible. Not only will you reduce your risk, but getting out even a semester early is going to reduce your debt.

    Of course, most corporations are not any more friendly to men. So if you avoided castration at college you are going to continue to have to dodge those scissors throughout the course of your professional life. Best course of action is take a job where you can rack up hours outside the office traveling and building a network. Put in an exhausting 3-4 years and then get enough connections to go into consulting or start your own business. Play your cards right, with low student debt, and you should be able to get a sustainable revenue stream ok around 100K with reasonable effort. You aren’t going to get rich, but you aren’t going to get smeared for some false accusation or end up fired and blacklisted because an HR drone was having a bad day. You will be able to speak your mind (within reason) and move around as you see fit. Probably the best life you can hope for as a younger man in this day and age.

    1. “I advise men just to not go to college these days. It is just too dangerous, especially for white men.”

      Seems like the Title IX establishment is much harsher on black men accused of policy violations against white women.

      Same as it ever was.

      1. You betcha.

      2. Most of the reporting on these cases omits information on the race of the participants, although in almost every other context in higher education it’s one in the first things noted. The fact that these cases often use pseudonyms to disguise the participants makes it difficult to discern patterns.

        1. Title IX hearings are completely secret unless there’s a lawsuit, so it’s impossible to get any aggregate data on the proceedings.

      3. TwelveInchPianist — what’s not being mentioned is the disproportionate number of Black men being dragged into these Title IX inquisitions. It’s still more White males because there *are* more White males, and no statistics are kept, but people are starting to notice.

        1. Interesting the the BLM activists are so silent about this inequity.

          If you notice, screeds about DEI, you’ll find precious few actions being taken with respect to equity.

          1. Most of the BLM activists are White women…

            1. Ever been in a conversation that wasn’t about white women with white women? Ever notice how quick is turns into something about white women when you are? Takes about 3.4 seconds.

              1. It’s like talking to a vegan or someone who’s into crossfit.

    2. I advise men just to not go to college these days. It is just too dangerous, especially for white men. Better off going into a trade or doing an apprenticeship.

      That’s a bit extreme.

      I would think it sufficient for the men to just not attend parties or go to bars where women are present. Don’t drink to excess ever. You never know when a woman might invade a party or event! No more than 1 beer every two hours would do. Leave any party when any woman arrives. Definitely leave any venue where a drunk or otherwise impaired woman is present.

      Never visit a woman in a room that has the potential for the door to close whether it be your room, her room or some one else’s room.

      Definitely live an an all male environment, preferably a “no-visitation” male dormitory where the rule is enforced.

      It’s perhaps not much fun, but its the similar to the advise women were always given to avoid being assaulted while still being able to go to university and get an education.

  5. The lesson of all this business is clear:
    Celibacy in college.

    1. Except these are the exceptional incidents. I don’t think any actual examination of the baseline frequency would show a risk worth that burden.

      1. As compared to the frequency of, say, airplane hijackings?

        1. Yeah, lets stop flying to prevent hijackings too.

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