Is Bias Based on Sex or Conduct?: Reflections on a Recent Judicial Decision Permitting Litigation in a Discplined-Student's Case

A male student may continue to litigate part of his Title IX claim against the University of Cincinnati after the federal court in Ohio partially denied the university's motion to dismiss. The student alleged that the university discriminated against him on the basis of sex when expelling him for having sexual encounter with a female student who was too incapacitated to consent, a claim that requires his support in the form of specific allegations that the university's disciplinary decision or process was tainted by gender bias. In response to the plaintiff's allegations, the court rejected the idea that the 2011 Dear Colleague Letter or the university's efforts to address sexual misconduct were themselves evidence of gender bias. Nor did it agree that allegations of bias in favor of sexual assault victims constitute allegations of sex discrimination. However, the court did accept as plausible allegations of gender bias the plaintiff's allegations that the university police detective who played an influential role in the disciplinary proceeding had developed a romantic attraction to the female complainant in the plaintiff's case. Specifically, the court reasoned, these allegations "give rise to a plausible inference that [the detective] would have a gender-based animus against [the plaintiff], a male who had sexual intercourse, whether consensual or non-consensual, with [the complainant]." As the court noted later when partially denying the university's motion to dismiss the plaintiff's due process claim, the university should have at least given the plaintiff the opportunity at the disciplinary hearing to question the detective about this potential bias.

The due process analysis makes sense to me as it appears potentially prejudicial to keep a respondent from being able to ask questions about the possibility of the detective's bias. But on the Title IX issue, I don't understand that this bias is motivated by the plaintiff's sex, but rather by the plaintiff's alleged conduct. Even the court's own words quoted above seem to me to characterize the bias as being about conduct (that the plaintiff "had sexual intercourse" with the complainant). The court's conclusion that this is "gender-based animus" does not flow from its own description, and in addition, conflicts with the first part of its analysis when it rejects the idea that bias against respondents is the same thing as bias against men. The court could have dismissed the Title IX claim without undermining the plaintiff's ability to litigate the detective alleged bias with the due process claim, since as a matter of due process, bias does not need to be motivated by sex in order to be actionable.

This isn't the first decision I've noticed the conflation of sex for conduct as the motivation for alleged bias in student discipline cases.  I think the reason why this tendency sticks out to me is that it is a reflection of judicial heteronormativity.  Normally, one tests for bias on the basis of sex (or race, etc.) with a substitution technique; one imagines a counterfactual scenario involving someone of the other category. If the judge had applied it here, they would have asked: If the person alleged to have had sexual intercourse with the complainant was female, would the allegations of the detective's bias been plausible?  Based on that question, the judge might conclude (as I have) that the plaintiff's conduct, rather than his sex, is the grounds for the alleged bias.That the judge does not appear to even ask that question stems from a short-sightedness about the range of possibilities where sex and sexual behavior are concerned.

Gischel v. Univ. of Cincinnati, 2018 WL 705886 (S.D. Ohio Feb. 5, 2018)