10th Circuit Rules Jury Could Infer ‘Anti-Male’ Bias in DU Title IX Case

Sturm Law School campus, the Buchtel Tower
With its decision, the 10th Circuit Court of Appeals accepted an argument made by John Doe that the University of Denver may have unequally investigated sexual-assault claims and made reports excluding information motivated by sex-based choices. / Photo courtesy of greatdegree.

In a ruling earlier this week, the 10th Circuit Court of Appeals found in favor of a male plaintiff, John Doe, over possible sex-based discrimination in a student’s expelling from the University of Denver stemming from incomplete reports by investigators and inconsistent statements by parties which could have had an anti-male bias.

The case, John Doe v. the University of Denver, mainly dealt with the fallout of an investigation into a possible sex assault happening back in 2018. While the male accused of sexual misconduct never faltered in his story and provided witnesses not included in the investigation’s final report, the female involved, Jane Doe, gave different stories to investigators, John Doe and friends. Despite the inconsistent testimony, certain facts and witnesses were eliminated from the DU Final Report on the incident — items of note that the court found as evidence of an anti-male bias by the school in its investigation and report.

John Doe, who was enrolled as an undergrad at DU in 2015, became romantically involved with a female student, Jane Doe. There was no sexual intercourse before the incident in the case. One night, Jane Doe drank alcohol and became inebriated, eventually finding her way to John, according to the opinion. John was also intoxicated and then Jane took John to her room, where they kissed and touched.

John was unable to recall the entire night, but at one point both he and Jane attempted, unsuccessfully, to have sexual intercourse. Jane and John disputed what happened the next morning — John claimed they had consensual sex, stating that Jane woke him up and told him good morning and waited for him to put on a condom and proceeded to have sex.

John further claimed that Jane didn’t ask him why he was putting on the condom, nor did she resist an attempt at sex, and claimed Jane was on top of him. However, at some point, Jane abruptly got up and left the room. Later she returned and wanted to discuss the two’s relationship, but John didn’t want to. John returned to his room and told his roommate what had happened.

However, Jane’s account was that she was still “pretty drunk” the next morning and when she woke up, John was fondling her. According to the opinion, Jane watched John put on a condom and began having sex with her, but she didn’t ask why or try to resist. Jane claimed she asked John to stop because it hurt, but that she didn’t otherwise verbally or physically resist John’s advances. 

Jane and John texted throughout the day following the intercourse, and that night, Jane went to a house party where she allegedly overheard John telling an acquaintance what happened that morning. Friends of Jane reported she was very upset.

A separate student took Jane home due to intoxication and reported later that Jane refused sex the night before with John but awoke “the next morning and found him engaging in sexual intercourse with her.”

In a phone call the day after the party, Jane claimed she couldn’t remember what happened the night before their sexual encounter and wanted to know if they had sex. John told her they did not. She asked John not to tell anyone about their morning together but assured him he didn’t hurt her or take anything from her. Footnotes of the opinion state that both Jane and John agree these statements were made.

According to the opinion, over the next few days Jane relayed “conflicting accounts of the encounter” to over 12 different friends and acquaintances. “It appears she initially believed John sexually assaulted her on Friday night, not Saturday morning, given that she could not remember their sexual encounter that night and she had bruises that she could not explain. On Tuesday morning, Jane texted John to ask why she had these bruises. John said he didn’t know where the bruises came from.”

Later, Jane’s friends told her she should get a “rape kit” done, given unexplained bruises appearing, according to the opinion. She did eventually have one done which included a Sexual Assault Nurse Examiner’s report, (or SANE). Eventually, John and Jane discussed the events and Jane told John she had been told by others she had been sexually assaulted, and John asked her if she thought he had sexually assaulted her.

“Jane said that she was not making a decision about whether or not she was sexually assaulted but ‘letting other people tell’ her,” the opinion states. Jane only reported the alleged assault several weeks later after discovering that three other individuals had been told of the incident.

Following this reporting, DU started a Title IX case and John discovered the allegations against him, where he expressed concern that the school hadn’t interviewed any of his proposed witnesses. Eventually, investigators issued a Final Report in 2016 finding that more likely than not John engaged in non-consensual sexual contact with Jane, and as a result, he was expelled. He tried to appeal the decision, but the school found he didn’t meet the “appeal criteria.”

John then sued DU for a violation of Title IX and several other claims, including negligence. The parties cross-motioned for summary judgment and the district court granted summary judgment to DU on all claims.

“Regarding the Title IX claim, the district court concluded John had failed to establish the required causal connection between the investigation and anti-male bias,” the opinion states. “The district court likewise denied John’s due process challenge for failure to state a claim and declined to exercise pendent jurisdiction over the state law claims.”

John appealed on two grounds: one, that the record contained sufficient evidence of a genuine dispute of material fact to his Title IX claim, and two, that the district court erred in failing to analyze this Title IX claim under the McDonnell Douglas burden-shifting framework.

“Under this framework, John has the burden of showing that his sex was a motivating factor in the school’s investigation and disciplinary decision,” the opinion states. “If John clears that hurdle, then the burden shifts to the University to articulate a legitimate, nondiscriminatory reason for its decision. 

According to US Legal, a company offering services including legal information, products, forms and document prep, the McDonnell Douglas test refers to a legal principle requiring a plaintiff to prove with evidence of discrimination. It also requires a defendant to prove that the action complained about was taken for nondiscriminatory reasons. The test arose out of a 1973 SCOTUS case McDonnell Douglas Corp v. Green.

Using the test, the 10th Circuit found that John Doe raised a reasonable inference that DU’s “one-sided investigation” established a prima facie case of sex discrimination. In response, DU then posed a legitimate “non-discriminatory” reason for its conduct — that the school employees were biased against sexual-misconduct respondents regardless of sex.

“If true, this type of explanation—though at odds with general notions of due process—would not expose the University to Title IX liability, because respondent and complainant are (at least in the abstract) sex-neutral classifications,” the opinion states.

At this stage of the test, the 10th Circuit assessed whether John produced enough evidence that DU’s explanation was for “covering up sex-based discrimination.” The opinion states that John satisfied that burden.

One of John’s claims was that DU’s investigation was filled with procedural deficiencies favoring Jane and disfavoring John, “despite substantial reasons to discount her allegations.”

In the context of Title VII, the court held that disturbing procedural irregularities surrounding an adverse employment action can demonstrate that an employer’s business reason is pretextual.

Of the 11 witnesses proposed by Jane, all were interviewed by investigators, according to the opinion. However, the investigators refused to interview the five witnesses proffered by John. Further, investigators explained they decided not to interview John’s witnesses because of “duplicative nature of information” and the obligation of the investigators to keep the “matter as private as possible.”

The court also sided with John Doe on claims that when the Final Report was viewed in a way most favorable to him the disciplinary committee reviewing John’s expelling could be construed to ignore, downplay and misrepresent inconsistencies in Jane’s account of the alleged assault.

In addition to Jane’s conflicting accounts of the alleged assault, the record reveals several examples of Jane making inconsistent statements about other matters to John, her classmates, and the investigators,” the opinion states. The opinion notes that Jane told many inconsistent details including inconsistencies on time, fondling, engaging in intercourse and whether or not they agreed to have sex. “The Final Report does not mention any of these inconsistencies.”

The opinion states that the report doesn’t discuss Jane’s “potential motives for making a false report,” including that she only reported the incident because “she heard John had told some of their classmates about the sexual intercourse” and wanted it to stop him talking about it.

“Notably, on Saturday, the day of the alleged incident, Jane told multiple people that she and John had sexual intercourse without ever mentioning that it was non-consensual,” the opinion states. “It was not until later — after Jane saw John talking to another young woman at a party — that she began telling people the encounter was not consensual.

The fact that Jane wanted to date John, but John didn’t want to date Jane was omitted from the Final Report as well, the opinion states.

Further, Jane refused to turn over the full report of the “rape kit” and instead only provided several pages indicating the scratches and bruises but had no description of the likely date or cause of the injuries from a medical professional. “The investigators explained that they had no legal process to compel disclosure of the omitted pages and that the parts of the report they reviewed were consistent with physical resistance by Jane on Saturday morning,” the opinion states.

However, the Final Report placed “a lot of weight” on the SANE report pages, according to the opinion. While the report noted that John’s version of the story didn’t change, the version didn’t outweigh the medical injuries that Jane detailed in the SANE report. “But, as John contends, the record shows that most of the injuries noted in the SANE report are inconsistent with Jane’s account of the alleged assault,” the opinion states.

“In sum, we agree the University’s investigation and treatment of John raises a plausible inference that it discriminated against John on the basis of his sex,” the opinion states.

Further, the opinion states that John pointed to evidence that DU treated males less favorably than females in investigating and disciplining allegations of sexual misconduct. While as a general rule, the 10th and other courts have declined to infer “anti-male bias” from disparities in the gender makeup of sexual-misconduct complaints and respondents, John “does not simply raise the disparity in the gender makeup.”

Instead, the opinion states that John provided a number of statistical anomalies raising at minimum a fair inference of anti-male bias. First, DU failed to formally investigate any of the 21 sexual-misconduct complaints brought by men from 2016-18, and during the same period 105 complaints were brought by women, 14 of which were formally investigated by DU.

In the same two-year period, five complaints were brought against a female, four by men and one by a woman, according to the opinion. “The University did not formally investigate the four male-initiated complaints but did investigate the female-initiated complaint. University statistics also show that a female student found guilty of non-consensual ‘touching’ was given a deferred suspension, whereas a male student found guilty of non-consensual ‘touching/kissing’ was fully suspended.”

While DU noted correctly that the two violations were described somewhat differently from the enforcement statistics chart, the 10th Circuit found it significant that the only male to receive a “deferred suspension” during that period was found responsible for physical, not sexual, assault.

The court wrote in the opinion that it was aware of the small sample sizes at play, but that it reflected the reality that sexual misconduct claims in higher education “overwhelmingly” involve a female complainant and a male respondent.

“Title IX plaintiffs challenging the outcome of a sexual-misconduct proceeding will rarely have direct evidence or even strong circumstantial evidence sufficient to overcome a school’s ‘anti-respondent, not anti-male’ argument,” the opinion states. “But here John has marshaled enough evidence to satisfy his burden of showing that under McDonnell Douglas that the University’s explanations of its conduct were pretextual.”

“In sum… we are satisfied that a reasonable jury could find that John’s sex was a motivating factor in the University’s decision to expel him,” the opinion states. 

Ultimately, the court found that while a one-sided investigation, standing alone, may only raise a reasonable inference of anti-complainant bias — a one-sided investigation “plus some evidence that sex may have played a role in a school’s disciplinary decision” it should be up to a jury to determine whether a school’s bias was based on a protected trait or merely a non-protected trait that breaks down across gender lines.

For that reason, the court vacated the district court’s grant of summary judgment to DU and remanded the case for further proceedings.

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