Last week, in a preview of the Title IX fights ahead under the Trump administration, a federal district court in Illinois issued an order in the case of Doe v. University of Chicago. John Doe, a male student at the University of Chicago, alleged that the way in which the school handled sexual assault allegations against him constituted gender discrimination under Title IX. Though this case is in the very early stages, the lawsuit seeks to pave a way for men to use Title IX to their advantage in pushing back against campus sexual assault initiatives and investigations.
Doe’s complaint is endemic of the things that men have been saying about the Title IX process since President Obama strengthened it in 2011. The complaint repeats talking points of “men’s rights activists,” whom the U.S. Department of Education invited into the process of Title IX reform months ago.
Indeed, the complaint is a veritable laundry list of male grievances. Doe believes that the university “favors” sexualt assault claims brought by women because the school wanted to appease the Obama-era Department of Education Office of Civil Rights (OCR), which worked to increase protections for victims. He’s angry that the Association of Title IX Administrators and the National Center for Higher Education Risk Management—two organizations with which the university’s associate dean for disciplinary affairs is affiliated—often refer to assault victims by female pronouns and the accused by male pronouns, which he charges is anti-male. He believes that the school affiliating with external groups that seek to highlight the problem of violence against women and combat campus sexual assault is further evidence that the school is biased against men.
Doe’s case arose out of a situation where two female students accused him of sexual assault. One, Jane Roe, went through the university’s investigation process, but the investigation was closed with a finding that the preponderance of the evidence—the standard required in Title IX investigations—did not support her claims. Later, Jane Roe publicly—in blogs, Facebook posts, and tweets—declared that John Doe had sexually assaulted her.
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A second student, Jane Doe, initially wrote Tumblr posts that seemed to indicate consensual sex with John Doe, but she later accused him of sexual assault, also on public social media accounts. In May 2016, John Doe approached the college and said he wished to file a complaint against Jane Doe for sexual harassment under Title IX, claiming her social media comments were “online sexual harassment.” The school declined to proceed on the complaint. John Doe’s court filing alleges that the school then encouraged Jane Doe to file a complaint against him in retaliation—a complaint that he says is false, and that the school knew was false.
That allegation—that a school official knowingly encouraged someone to file a false complaint—is what has helped John Doe’s case stay alive. If that allegation were to be found true, and John Doe could prove he was discriminated against because he is a man, he could theoretically win a Title IX case. However, all of that hinges upon John Doe being able to conclusively prove that the school official intended to harm him, rather than simply being negligent.
The court’s order in this case was issued in response to the university’s motion to dismiss. In a motion to dismiss, which Imani Gandy explains more about here, one side asks the court to rule purely on the legal, rather than factual, underpinnings of a lawsuit—in other words, whether the plaintiff has legal grounds to sue at all.
In the order, the court correctly pointed out that John Doe’s claim that the university created a hostile environment for men by pursuing sexual assault claims brought by women was not viable. As required by OCR, the university adopted a position of investigating (and disciplining, when appropriate) sexual assault claims. The fact that those investigations existed, or that the university partnered with people to highlight awareness about sexual assault, isn’t anti-male and doesn’t discriminate against men.
That’s also why Doe’s claim that the university was deliberately indifferent to his plight failed. To the extent John Doe was the victim of anything—being named as a rapist (even falsely) in a public forum by another student, for example—it wasn’t discrimination based on sex, which is what Title IX requires. No one was highlighting John Doe’s activities because he was a man; they were highlighting them because he was allegedly someone who committed a sexual assault.
Doe is now allowed to proceed with some of the claims in his lawsuit—that he was retaliated against for being male, for example, although the court’s order only gives him a limited time to prove his assertion that the school official knew Jane Doe’s complaint was false and knowingly encouraged her to file a claim regardless. He is not allowed to proceed with the portions of the lawsuit where he claimed a hostile environment or that the school was deliberately indifferent to him.
All of this is playing out in an environment radically different than the one in effect when the lawsuit was originally filed. Much of John Doe’s complaint is predicated on his unhappiness with the legal landscape in effect since 2011, when Obama directed schools that received federal money to strengthen their systems for investigating sexual assault claims. That directive has long angered conservatives and men’s rights advocates, and both of them found a champion in Betsy DeVos, who happily dismantled the Obama-era protections.
Under the new guidance issued by DeVos, the school must “balance the rights” of the accused. It can do so, if it so chooses, by abandoning the “preponderance of the evidence” (that it is more likely than not that the assault happened) standard and moving to a higher “clear and convincing” (that it is highly probable the assault happened) standard. In other words, victims of sexual assault will have to work much harder to make their case in an area of investigation that is already rife with biases against them. The new guidance also removes the 60-day time limit, which means investigations could stretch on indefinitely, and allows for mediation, which the Obama administration had eschewed, believing women might feel pressure to participate in the mediation.
With this rollback of Title IX protections, DeVos is signaling that cases like this do have merit, and that there is actually an anti-male bias on university campuses. Indeed, her hiring of Candice Jackson to head the Office of Civil Rights is perhaps the biggest tell: Jackson told the New York Times in July that 90 percent of campus sexual assault allegations “fall into the category of ‘we were both drunk.’”
With fewer protections for those who are assaulted, and increasing popularity of belief that men are the truly oppressed ones, the John Does of the world may very well win case after case.
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