Court Dismisses Expelled Student's Case Against Vassar

Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody.").  His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief."  Based on  this evidence -- along with the statements of witnesses who testified to the female student's intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.)

Yu's primary claim against Vassar is that the college's decision to expel him violates Title IX.  His argument to this end incorporated two alternative theories that have been accepted by earlier  precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement.  First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome.  To this end, Yu made numerous allegations of procedural flaws.  For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainant's father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law.

Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error.  For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that 'males invariably lose' when charged with sexual misconduct at Vassar."  Instead, Yu argues that only bias could explain why the committee did not read the complainant's post-incident messages as evidence of his innocence.  But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainant's explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant.

Yu also argued that Vassar's policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men.  Vassar's policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex.  Moreover, the court recognized that Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. 

Yu's second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student.  Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled.

As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts.  In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures.  But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing.

Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).

Another Male Student Files Title IX Case Over Sexual Assault Grievance Proceeding

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.