After blogging about a similar case against St. Joseph's University, we've learned of another male student, accused of rape, who has filed a Title IX case against his university to challenge the grievance proceeding that lead to his expulsion. Peter Yu's complaint against Vassar College describes a consensual sexual encounter that later resulted in allegations of rape against him. He argues that the grievance proceeding used to find him guilty was procedurally flawed by the denial the effective assistance of any advisor, the opportunity to cross-examine his accuser, and the opportunity to call other witnesses. He also argues that the panel that conducted his hearing was biased against him, in that it was made up entirely of faculty members and did not include a student, and that those faculty members were all colleagues of the accuser's father, a Vassar professor.
Inside Higher Ed is covering these cases, and reporter Allie Grasgreen asked me to speculate on how plaintiffs like Yu and Harris might prevail under Title IX. I said that I thought it would be difficult for either one to demonstrate that the university was discriminating against them because of sex, as the statute requires. Neither one is likely to have access to evidence amounting to a smoking gun, like a university official admitting to rigging the process out of disdain for men. Nor is likely they could create an inference of such intent by, for example, arguing that male students accused of rape are treated differently from female students accused of rape (because there are not likely many examples of the latter category).
Title IX plaintiffs may alternatively use the disparate impact framework, rather than having to prove that university officials were biased against men. A disparate impact claim requires the plaintiff to show that the university's otherwise-neutral policy or practice adversely affects men in some statistically significant way. This seems to be the route Yu's lawyers are pursuing, given their arguments that "Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct" and that "male respondents in sexual misconduct cases at Vassar College are ...invariably found guilty, regardless of the evidence, or lack thereof." But this too will be a difficult argument to pursue, as it requires the plaintiff to show not only that male students are overwhelmingly found guilty, but falsely so. The amount and type of evidence that would be necessary to make that showing would be very difficult to acquire.
But just because Title IX is a difficult cause of action for male plaintiffs to sustain in these cases, doesn't mean that men are without recourse when falsely accused. Vassar's policy that governs disciplinary hearings is effectively a contract with its students. To this end, Yu's complaint contains a breach of contract claim as well as others like negligence and unfair and deceptive practices. I suspect that if he prevails in this litigation, it will be on one of these claims.