[Eugene Volokh] Student may go forward with lawsuit alleging Columbia’s sex assault investigation was biased against him because he was male

John Doe, a male Columbia University student, was accused of sexually assaulting a classmate. Doe claimed the sex was consensual and not coercive, but Columbia found that he had “directed unreasonable pressure for sexual activity toward [the classmate] over a period of weeks” and that “this pressure constituted coercion [so that] the sexual intercourse was without consent.” Columbia then suspended Doe for, in effect, 1½ years.

Doe sued, claiming that Columbia failed to properly investigate the matter, because its process is biased against men. The district judge threw out the claim before trial, but today’s decision of the U.S. Court of Appeals for the Second Circuit (Doe v. Columbia University) reinstates the claim. Here’s an excerpt, though the opinion provides many more factual details:

Plaintiff’s Complaint pleads sufficient specific facts giving at least the necessary minimal support to a plausible inference of sex discrimination to survive a Rule 12(b)(6) motion to dismiss, if Title IX’s other requirements are met. It alleges that Columbia’s hearing panel (which erroneously imposed discipline on the Plaintiff), its Dean (who rejected his appeal), and its Title IX investigator (who influenced the panel and the Dean by her report and recommendation), were all motivated in those actions by pro-female, anti-male bias. Those alleged biased attitudes were, at least in part, adopted to refute criticisms circulating in the student body and in the public press that Columbia was turning a blind eye to female students’ charges of sexual assaults by male students.

Among the Complaint’s allegations that support the inference of sex discrimination are the following. Both the investigator and the panel declined to seek out potential witnesses Plaintiff had identified as sources of information favorable to him. The investigator and the panel failed to act in accordance with University procedures designed to protect accused students. The investigator, the panel, and the reviewing Dean, furthermore, reached conclusions that were incorrect and contrary to the weight of the evidence.

When the evidence substantially favors one party’s version of a disputed matter, but an evaluator forms a conclusion in favor of the other side (without an apparent reason based in the evidence), it is plausible to infer (although by no means necessarily correct) that the evaluator has been influenced by bias. Here, the facts pleaded in the Complaint (which we must accept in the light most favorable to Plaintiff) support John Doe’s version (not surprisingly as they represent his contentions). The Complaint’s narrative depicts Jane Doe as an altogether willing participant. It denies that Plaintiff coerced Jane and asserts that “no evidence was presented” in support of the claim of coercion. The alleged fact that Sessions-Stackhouse, and the panel and the Dean, chose to accept an unsupported accusatory version over Plaintiff’s, and declined even to explore the testimony of Plaintiff’s witnesses, if true, gives plausible support to the proposition that they were motivated by bias in discharging their responsibilities to fairly investigate and adjudicate the dispute.

While those allegations support the inference of bias, they do not necessarily relate to bias on account of sex. Additional allegations of the Complaint, however, give ample plausible support to a bias with respect to sex. As outlined above, the Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.

Columbia argues that the pleaded facts do not support an inference of intentional sex discrimination. It argues that the criticism of the University was for not taking student complaints of sexual assault seriously, and that any motivation on the part of the panel to demonstrate that it takes such complaints seriously is not the same thing as a motivation to discriminate against an accused male student. The district court stated that any bias in favor of Jane Doe “could equally have been — and more plausibly was — prompted by lawful, independent goals, such a