The Volokh Conspiracy
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Allegedly False Rape Accusations as Sexual Harassment for Title IX Purposes
"[P]ersistent and unfounded branding of a man as a 'rapist' cannot be easily dismissed as anything other than sex-based harassment."
From Friday's decision by Judge Paula Xinis (D. Md.) in Doe v. Univ. of Md, College Park (for more detail on the factual allegations, see pp. 4-12, and for more on two claims that were dismissed, see pp. 21-23):
In October 2020, University of Maryland student Jane Roe … alleged that John Doe …, the plaintiff here, and another student had sexually assaulted her in separate incidents on the same morning. Following an investigation, the University concluded that Doe was not responsible for any wrongdoing. Nevertheless, Roe and others embarked on a months-long public campaign to brand Doe a rapist and to exclude him from campus activities. Doe now asserts that the University's failure to address this hostile, sex-based campaign violated Title IX….
[T]he persistent pattern of publicly identifying [Doe] as Roe's "rapist" which led to his removal from Club Lacrosse, constitutes harassment directed at his sex. "Sexual harassment" includes "sex-specific language that is aimed to humiliate, ridicule, or intimidate." Plainly, a reasonable juror could conclude that persistent public pronouncements that Doe is a "rapist," a "sexual predator" and "dangerous to girls on campus," is language aimed at his sex and his sexual conduct.
{In determining whether Doe had been harassed based on his sex, a reasonable juror could also consider the source of the comments. The PSA [a student-run organization called Preventing Sexual Assault] was the on-campus support group for female victims of sexual violence perpetrated by male community members. For instance, during the on-campus "Slut Walk," PSA members carried signs stating "Tell men not to rape" and "Pussy grabs back." From this, a reasonable juror could infer that the PSA Presidents' public campaign to brand Doe a "rapist" drew on the same sex-specific framing embodied in PSA's slogans and was consistent with the organization's broader sex-based mission.}
Indeed, such language is no less based on sex than the insults that supported the sexual-harassment claim in Feminist Majority Found. v. Hurley (4th Cir. 2018). There, female members of a women's rights organization opposed the authorization of male-only fraternities. In response, the university's all-male rugby team and their supporters "expressed—in offensive terms—strong criticism" of the plaintiffs. This included a drive-by shout of "Fuck the feminists!," chants glorifying the rape of women; and a barrage of on-campus Yik Yak posts referring to female students as "femicunts, feminazis, cunts, bitches, hoes, and dikes." Even though the misconduct in Hurley consisted entirely of speech celebrating sexual violence against women and name-calling aimed at female promiscuity, neither the district court nor the Fourth Circuit hesitated to conclude that this verbal vitriol constituted "conduct on the basis of sex." See Hurley ("Indeed, the Complaint portrays repeated instances of UMW students targeting and harassing Feminists United members with threats and other sex-based hostility. Those harassing activities were reported to the University on multiple occasions over many months.").
The Court reaches the same conclusion. To hold otherwise would defy logic and common sense in light of Hurley. Harassment based on sex is no more or less actionable when men call women "bitches" and "hoes" than when women brand men "rapists" and "sexual predators." Accordingly, whether the conduct amounts to sex-based harassment remains a question for the jury to decide, and on this record a reasonable juror could so conclude. Indeed, even the University classifies "Non-Consensual Sexual Penetration," i.e., rape, as sex-based "Prohibited Conduct." Because rape is inherently sex-based, persistent and unfounded branding of a man as a "rapist" cannot be easily dismissed as anything other than sex-based harassment.
Next, as to the "aim" of the sex-specific language, a reasonable juror could conclude that the harassment was designed to humiliate and ridicule Doe as an alleged "rapist" who had been wrongly exonerated. Roe and the PSA Defendants repeatedly contacted Club Lacrosse presidents and [University Director of Club Sports] Klier to press for Doe's removal from the team, his preferred University community.
And it appears they succeeded. Social events with Doe were canceled; he was placed on "social probation;" and told to "step away from the club for everyone's benefit," all in light of Roe's insistence that he was "guilty" of raping her…. PSA's purpose was to find "a way to really just make [Doe] feel unwelcome enough that he doesn't want to come around anyway" …. Ultimately, the Club expressed concern about the "optics" of keeping an accused rapist on its roster and, according to Doe, cut him from the team. On this record, a reasonable juror could find that the campaign to brand Doe a "rapist" was intended to ridicule and demean him, culminating in his exclusion from Club Lacrosse. Accordingly, sufficient evidence exists to support Doe's claim of sex-based harassment.
In response, the University contends that Balazs v. Liebenthal (4th Cir. 1994), compels a different result. The Court disagrees. Balazs principally addressed whether an employee had exhausted administrative remedies to pursue a Title VII sex-discrimination claim. Nonetheless, the Balazs Court did opine, with limited analysis, that an employee's alleged termination based on a false accusation of sexual misconduct was insufficient to state a sex harassment claim. See Balazs ("An allegation that he was falsely accused of conduct which, if true, might have given rise to a claim of employment discrimination based on sex by someone else in no way states a cause of action that plaintiff himself was a victim of discrimination based on his sex.").
This case is materially different. Doe has produced evidence of far more than a single false accusation. A reasonable juror could find that, like the plaintiffs in Hurley, Doe was publicly ridiculed, shamed, and targeted for months as a "rapist," a "sexual predator," and a "danger to girls" on campus. In this way, Doe's case cleaves more closely to Hurley than Balazs….
On this record, a reasonable jury could conclude that Doe's exclusion and the campaign branding him a "rapist" were driven by sex-based hostility.
The Court next turns to the second element of Doe's claim, whether the harassment was severe and pervasive enough to deprive him of an educational benefit. The University argues that the claim fails because Doe's removal from Club Lacrosse did not amount to an educational deprivation. The Court again parts company with the University. Harassment "effectively bars the victim's access to an educational opportunity or benefit," when it prevents participation in educational programs or activities. That principle extends to harassment that undermines a student's participation in university sports. Organized extracurricular athletics such as Club Lacrosse are squarely among the activities in which exclusion can give rise to liability under Title IX.
To escape Jennings, the University attacks the weight rather than sufficiency of the evidence on Doe's exclusion from Club Lacrosse. It characterizes Doe's evidence as "gossamer thin," and asserts that his testimony is "contradicted by the record." But this is precisely what juries are for: to decide which version of events to believe. On this record, Doe has produced sufficient evidence of the "concrete and negative effect" his ouster had on him … describing emotional injury arising from "having been excluded from the club lacrosse team and by being publicly and repeatedly accused of rape, among other things," and referencing counseling expenses ….
Doe contends that the University had been deliberately indifferent to each of his three complaints of student-based harassment. The Court considers the complaints in turn.
On the first complaint, no reasonable juror could conclude that the University's response was clearly unreasonable. When Doe, through counsel, initially contacted OCRSM, the Office responded within minutes. It also provided a letter of exoneration for Doe to share with Club Lacrosse and any other detractors. The Office also advised Klier that Doe could not be excluded based on allegations for which he had been found not responsible. Given the University's robust response to the first complaint, no reasonable juror could conclude the response amounted to deliberate indifference.
As to the third complaint concerning Roe's outburst at an off-campus bar, OCRSM refused to pursue the matter on the ground that the conduct occurred outside its jurisdiction. Sure, while an argument could be made that the off-campus incident was simply a continuation of her on-campus attacks, no trier of fact could deem the University's jurisdictional determination clearly unreasonable.
The University's non-response to the second complaint tells a different story. Doe submitted the complaint on February 10, 2022, shortly after Club Lacrosse leadership removed him from the team. Unlike the first complaint, OCRSM appears to have done nothing. The record is bereft of any evidence that the University spoke with Doe about the complaint or investigated the circumstances of his ouster. Instead, Doe received a Notice of Mandatory Dismissal that summarily stated the matter was dismissed because, "even if substantiated," his allegations "would not constitute conduct taken by Respondents on the basis of Complainant's sex or because [of] Complainant's prior participation in the University's sexual misconduct adjudication process, rather than because Respondents perceived Complainant as a perpetrator of a sexual offense against Respondent [Roe]."
When reviewing the record most favorably to Doe, a jury could find the University's stated ground for disclaiming "jurisdiction" over this complaint to be clearly unreasonable. For the first complaint, OCRSM took immediate action in assuring Doe that Club Lacrosse could not remove him from the team because he had already been cleared of all rape charges. OCRSM also looked into the claim prior to its dismissal. Yet for the second complaint—when Club Lacrosse in fact excluded Doe on account of the harassment—OCRSM did nothing because now the claim was somehow not "sex-based." This study in contrasts can lead a reasonable juror to conclude the University's failure to act was clearly unreasonable such that liability may be imputed to it….
{The University also suggests that even if the Club Presidents removed Doe from the team, that decision could not be imputed to the University because OCRSM had earlier directed the Club not to remove him. But all this really reflects is the Club Presidents' defiance of the directive. This cannot absolve the University of its obligation to take further remedial action. To the contrary, a reasonable juror could conclude that the University's decision to do nothing after students ignored the Office's directive was itself clearly unreasonable, or, put differently, that the University "did not engage in efforts that were 'reasonably calculated to end [the] harassment.'" To the extent the University claims it lacked "control" over the student-run organization, nothing in the record supports that contention.}
A few observations:
[1.] The court's analysis on these facts seems to turn entirely on the university's failure to stop Doe's removal from the lacrosse team; but the logic of Hurley suggests that liability could have also been imposed based on the university's failure to stop the allegedly false public accusations against Doe. Here's the relevant excerpt from Hurley:
The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak's location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University's wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students. See Davis ("Where … the misconduct occurs during school hours and on school grounds[,] … the [educational institution] retains substantial control over the context in which the harassment occurs."); Kowalski v. Berkeley Cty. Sch. (4th Cir. 2011) (observing "that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them [may] in fact [constitute] in-school speech").
Furthermore, to the extent the sexual harassment was communicated through UMW's wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW's network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW's network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.
Beyond the University's technical capacity to control the means by which the harassing and threatening messages were transmitted, the Complaint demonstrates that UMW could have exercised control in other ways that might have corrected the hostile environment. For instance, UMW administrators could have more clearly communicated to the student body that the University would not tolerate sexually harassing behavior either in person or online. The University also could have conducted mandatory assemblies to explain and discourage cyber bullying and sex discrimination, and it could have provided anti-sexual harassment training to the entire student body and faculty. In these circumstances, we are satisfied that the Complaint sufficiently alleges UMW's substantial control over the context in which the alleged harassment occurred….
Under the Complaint, UMW had the ability to punish those students who posted sexually harassing and threatening messages online. Indeed, the Complaint recounts that UMW had previously disciplined students—members of the men's rugby team—for derogatory off-campus speech. If UMW could punish students for offensive off-campus speech that was not aimed at any particular students, the University also could have disciplined students for harassing and threatening on-campus speech targeted at Feminists United members….
At bottom, in assessing whether UMW—under the Complaint—had sufficient control over the harassers and the context of the harassment, we cannot conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace. See Kowalski (rejecting student's First Amendment challenge to high school's disciplinary action taken against student who, off campus, created website to bully classmate). Rather, we are satisfied that the Complaint sufficiently alleges that UMW could exert substantial control over the context in which the harassment occurred and could exercise disciplinary authority over those UMW students who sexually harassed and threatened the Feminists United members.
If a university's failing to take disciplinary measures to stop sex-based insults (as in Hurley) and alleged threats is a Title IX violation—even when the statements are made online or off campus—then it would follow from the logic of Hurley plus this case that the university's failing to take disciplinary measures to stop rape accusations (at least once the university concluded they were unfounded) would be as well.
[2.] When Feminist Majority Foundation was decided, I endorsed this criticism of it by Samantha Harris (then at FIRE):
The alarming upshot of the ruling is its suggestion that Title IX may sometimes require colleges to censor or block all students' access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all….
Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief—joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen—on that point, arguing that "[t]his case turns exclusively on the university's response to offensive but constitutionally protected speech." Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant….
Make no mistake, the majority's novel and unsupported decision will have a profound effect, particularly on institutions of higher education …. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid … Title IX liability ….
I continue to think this criticism is correct, and I'm likewise skeptical of Title IX rules that would require universities to punish students based on their public speech about alleged rapes. This having been said, here at least Doe's allegation was that the speech was constitutionally unprotected, since he claimed that the statements about him were false and defamatory. In principle, the First Amendment would allow public universities to discipline students for speech that they find in their processes to be false, defamatory, and said with recklessness—or perhaps even negligence—as to its falsehood (just as the First Amendment allows imposing civil liability under such circumstances). Likewise, the First Amendment wouldn't preclude the federal government from pressuring universities, public or private, into imposing such liability. And in any event, right or wrong, Feminist Majority Foundation is the binding precedent in the Fourth Circuit, and its logic would, as I noted above, extend at least as much to such false allegations as it did to the speech involved in Feminist Majority Foundation itself.
[3.] Doe had also sued the two co-Presidents of the PSA student group for defamation; that claim settled, and the terms of the settlement have not been disclosed.
Benjamin North and Jason Greaves represent plaintiff.
