Sexual Misconduct Investigations in Higher Ed Facing Scrutiny by Courts for Gender Bias
The U.S. Court of Appeals for the Second Circuit, in Doe v. Columbia University, recently handed down a significant decision regarding potential claims of parties accused of sexual assault or other offenses under university codes of conduct. This important decision demonstrates that secondary education institutions must carefully examine and implement their sexual offense and other student conduct policies to be free of gender bias. While many schools have worked hard to investigate and take action to prevent sexual harassment and violence against women, recent court decisions are a reminder of the obligation to ensure a level of due process and lack of bias against accused males.
In Doe v. Columbia University a student was accused of, and found responsible for, sexual assault pursuant to Columbia’s Title IX and Violence Against Women’s Act policies and procedures. The accused student filed a lawsuit alleging Columbia University violated Title IX because the policy and Title IX investigator were motivated by a pro-female gender bias. The bias was allegedly attributable, in part, to deflect criticism of the university’s prior handling of similar complaints. In his lawsuit, the student cited numerous alleged deficiencies in the investigation and hearing process that he alleged showed a bias against accused male students.
The accused student alleged that Columbia University had been severely criticized in the student body and public press, and it was under a great deal of pressure to accept accusations by female students at face value, particularly when lodged against male athletes. In particular, the Court held that any policy (or temporary application of that policy) favoring one gender over another is potentially unlawful gender discrimination, and a noble motive of preventing sexual offenses or violence (or even a less noble motive of avoiding bad publicity) does not shield the action.
In short, universities must be careful not to tilt investigations and administrative processes for student conduct issues, through policy or practice, in favor of one side or the other, or they will risk lawsuits by students claiming Title IX violations. While the Court of Appeals did not make any factual findings about the alleged biases and merely allowed the student’s lawsuit to proceed, Columbia University must now face the prospect of expensive discovery that will likely seek internal communications about formulating and implementing its sexual offense policy, particularly regarding the publicity the university has faced due to past incidents.
Overall, this decision and one issued in March by the U.S. District Court in Massachusetts (Doe v. Brandeis University, cv-11557-FDS) are part of a broader pushback by the courts and some interest groups against one-sided sexual offense and conduct policies that do not treat the accused and accusers on equal footing. Higher education institutions should consult experienced Title IX counsel to review their policies and procedures to confirm that they are not gender biased and yet still complying with the requirements to prevent sexual harassment, sexual violence and discrimination based on sex.