While schools implement programs educating students about affirmative consent and stricter sexual misconduct policies, a number of lawyers and law professors have been vocal in their criticism of university kangaroo courts, arguing that the system is failing both campus sexual assault victims and the accused.
The University of Pennsylvania is the latest school to be hit with a Title IX civil suit, by a male senior who claims the school botched a sexual assault investigation that found him responsible for raping a fellow student.
The plaintiff, known only as John Doe, has accused the school of sex discrimination and racial bias in its “sham investigation.” The lawsuit argues that the school perpetuated the stereotype of a “young African American male as aggressor” in its final investigative report, which recommended his expulsion.
It also states that John Doe only learned about his accuser’s version of events when he received the final report and that a university investigator changed language in the accuser’s original statement to make Doe look more guilty.
Doe is seeking more than $600,000 in damages and has asked the court to stop ongoing disciplinary proceedings and to “destroy” all relevant materials from the original investigation.
A final disciplinary hearing for Doe’s case was scheduled to take place Thursday at the university, according to court documents.
Filed last Friday, Doe’s lawsuit is the most recent in a series of complaints against universities alleging gender bias against male students accused of sexual assault.
In the past four months, similar suits have been filed against Hobart and William Smith Colleges, University of Colorado Boulder, and Denison, Columbia, and Yale universities, with male students pursuing sex discrimination claims under Title IX. (Dozens more have been filed in the last two years.) Title IX bars gender discrimination by schools receiving federal funds and was originally enacted in 1972 to protect women’s rights on college campuses.
In 2011, the Education Department’s Office of Civil Rights (OCR) demanded universities enforce Title IX to help prevent sexual assault and harassment on campuses.
But the spate of lawsuits filed by male students claiming Title IX protection suggests universities may be overcompensating after years of failing to protect alleged victims of sexual misconduct.
On Monday, the University of Pennsylvania filed a response to John Doe’s complaint asking the court to allow the disciplinary process to play out before allowing Doe to move forward with his lawsuit.
“There has not even been a hearing at the university yet—let alone a final decision—and [Doe] already wants a ‘do over,’” the filing reads. “There cannot be any irreparable harm when we do not even know what the outcome is, let alone whether it is ‘harmful.’”
Though the final investigative report recommended Doe’s expulsion, the university noted that he has not yet been kicked out and “may be found not responsible” in the final hearing.
If he is found guilty of sexual assault, he can appeal that decision, at which point the university could reverse its decision or reduce his punishment.
The university also asked the court to deny Doe’s request that it operate like a criminal court, which requires proof beyond a reasonable doubt, when adjudicating sexual assault or misconduct cases. (The same argument has been made in other Title IX lawsuits filed by male students, since most universities—including UPenn—use a “preponderance of evidence” standard instead.)
The university cited a separate but relevant case in the U.S. District Court in Pittsburgh, Pennsylvania, which remarked several weeks ago that “[A]n educational institution’s authority to make disciplinary decisions without having to resort to court intervention is a substantial public interest,” and that mandating judicial intervention would “substantially weaken the institution’s legitimate disciplinary authority among its students.”
The university did not, however, dispute multiple claims in Doe’s suit that the investigation into his alleged sexual assault was sloppy and biased.
Among them are that the investigative team misinterpreted the university’s Sexual Violence Policy in determining Doe had sex with his accuser without her consent.
Though the policy defines consent as “an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions,” the university’s investigative team concluded that Jane hadn’t consented because she “never said ‘yes,’ was never asked, and never initiated sexual contact.”
On June 8, 2016, the morning after Doe and his accuser—a fellow senior—had sex after meeting at a bar, the young woman returned to her dorm and, when asked by her roommate where she’d been all night, replied that she was at “some asshole’s place.”
She told university investigators that she then went into her room to charge her phone and saw that her roommate, who had returned in the middle of the night from a semester abroad, had been stranded outside their room for hours while she was sleeping at Doe’s and had texted that she was “gonna kill” her.
The roommate later found Doe’s accuser crying and asked if she’d been raped, to which she replied “yes.”
She went to the university Women’s Center and to the police. That same day, a detective searched Doe’s apartment and informed him of the allegations made by his accuser.
It is not clear whether Doe was ever criminally charged, though court documents state that he passed a lie detector test. (Doe’s lawyer did not return The Daily Beast’s request for comment.)
Doe was interviewed by a university investigator on July 6 and was informed two days later that he’d been “charged” with sexual assault.
When the university delivered a report on Aug. 22 that found him responsible, Doe discovered discrepancies between what his accuser told university investigators and what she told police.
The latter was much more violent: Outside his apartment, Doe had “grabbed me by my hair, arm, and neck at point [sic] while pulling me into the house.” Speaking to the university investigator, she said Doe had “gently pulled her” toward his house and “led” her upstairs to his bed. The Aug. 22 report omitted the word “gently.”
Doe submitted a letter disputing many details in this initial report, none of which were countenanced in the final report he received Sept. 8.
The investigative team wrote that they had asked Doe’s accuser about her contradictory statement to police and that she told them Doe had “pulled her into the house while holding her hand and using his other arm to hold her around her neck, head, and hair.”
This particular account was not recorded in the university’s interview summary, and an investigator acknowledged he had not “put pen to paper” after this conversation.
Instead of owning up to their sloppy reporting, the investigative team “changed the ‘facts’ in a blatant attempt to paint John as a violent aggressor and to support at any cost the team’s conclusion that John was guilty,” Doe’s complaint reads.
A UPenn hearing panel will determine whether to expel Doe or modify the investigators’ conclusion.