No Evidence of Anti-Male Bias in Colgate Case

I strive to keep up with the decisions in cases brought against colleges and universities by students who are disciplined for sexual misconduct, in particular, the cases in which plaintiffs alleges that a university's decision to discipline them was motivated by bias against men, in violation of Title IX. Many of these types of claims are dismissed early in the litigation due to failure of the plaintiffs to allege a specific basis for alleging that gender bias tainted the universities' disciplinary process.  Some example of these decisions from recent months include:

• Doe v. St. John's Univ., 2017 WL 4863066 (D. Minn. Oct. 26, 2017)
• Doe v. Columbia College Chicago, 2017 WL 4804982 (N.D. Ill. Oct. 25, 2017)
• Saravanan v. Drexel Univ., 2017 WL 4532243 (E.D. Pa. Oct. 10, 2017) 
• Ruff v. Bd. of Regents of Univ. of New Mexico, 2017 WL 4402420 (D.N.M. Sept. 30, 2017) 
• Streno v. Shenandoah Univ., 2017 WL 4407938 (W.D. Va. Sept. 30, 2017)
• Stenzel v. Peterson, 2017 WL 4081897(D. Minn. Sept. 13, 2017)

On the other hand, some recent decisions have denied universities' motions to dismiss those claims, and permit the plaintiff to proceed with the next phase of litigation, discovery, in which the plaintiff gathers evidence in support of the allegations they have made. 

• Doe v. Univ. of Chicago, 2017 WL 4163960 (N.D. Ill. Sept. 20, 2017) 
• Rolph v. Hobart & William Smith Colleges, 2017 WL 4174933 (W.D.N.Y. Sept. 20, 2017) 
• Doe v. The Trustees of the Univ. of Pennsylvania, 2017 WL 4049033 (E.D. Pa. Sept. 13, 2017) 
• Doe v. Case W. Reserve Univ., 2017 WL 3840418 (N.D. Ohio Sept. 1, 2017)

At the end of discovery, university defendants have another chance to dismiss the claim by moving for summary judgment. This motion forces the court to consider the quality of the plaintiff's evidence, rather than just the sufficiency of the allegations in the complaint as it does in response to a motions to dismiss. Only by winning at this stage can the plaintiff proceed to a trial and have the opportunity to convince a jury that the evidence demonstrates that the university is liable for gender bias. Far fewer cases make it to this stage in the process, and since decisions involving motions to dismiss disciplined students' Title IX claims have become rather common, it is the summary judgment decisions that are now more interesting to me.

Recently, a federal district court granted summary judgment in favor of Colgate University; dismissing claims of a student that the university had expelled for sexual misconduct. Like many other disciplined-student plaintiffs, the plaintiff here alleged that Colgate's anti-male bias was rooted in the current social and political climate, which has forced colleges and universities to be more responsive to reports of sexual misconduct when they occur. While some courts have dismissed bias claims that are based on these types of allegations, on the grounds that bias (if you will) against sexual misconduct respondents is not the same thing as bias against men, others have accepted that allegations along those lines are sufficient at the motion to dismiss stage. Notably for Colgate's purposes, one such court is the Second Circuit Court of Appeals, which has jurisdiction over the federal courts in New York, where Colgate is located.  Since the Second Circuit's decision in Doe v. Columbia University last year, I've been interested to see what happens to cases with similar kinds of gender-bias allegations as they get further along in litigation and reach the summary judgment stage?  Do plaintiffs manage to marshal enough evidence of the link between a generalized, anti-rape climate, and anti-male bias in their disciplinary proceeding, to make it to a jury? 

In the Colgate case, the court said no, as it dismissed the plaintiff's bias claim on summary judgment. It rejected the plaintiff's evidence, for example, that a "sexual climate forum" held at the university was evidence of institutional bias against men, where there was no evidence that this forum was anti-male.  Nor was the existence of campus activism around survivor support, or Colgate's efforts to comply with the 2011 Dear Colleague Letter, especially given that not all men accused of sexual misconduct at Colgate since 2011 have been found responsible. The court also rejected as evidence of anti-male bias: assurances by campus officials that students found responsible for sexual misconduct will be expelled, training session that used hypotheticals where the person consenting was female and the person asking for consent was male and the victim was female, and some differences in the way that complainants and respondents are treated differently in the disciplinary process.

This outcome should hopefully provide some reassurance to campus administrators that they are not caught between a rock and a hard place when it comes to sexual violence. While it is theoretically possible to imagine actual examples of anti-male bias (a fact that explains the willingness of courts to allow for litigation to continue when the allegations are sufficient), the mere fact of working to prevent and  respond to sexual violence is not inherently anti-male.  Implementing policies and procedures that were responsive to the 2011 Dear Colleague Letter is not inherently anti-male. Awareness-raising is not inherently anti-male. Victim-sensitivity is not inherently anti-male. If this is all that a plaintiff can marshal in support of their bias allegations, it is clear that is not sufficient evidence of institutional bias.