Since the Dear Colleague letter confirmed tilted Title IX adjudication systems, more than 200 accused students have sued their schools. They’ve won more than they have lost—but, thanks to favorable precedents, universities have won their fair share of cases as well (51 in the federal courts).
In many of those decisions, the judges have expressed at least a degree of concern that they can’t act despite the unfairness of the university’s system. Then, however, there’s a judge like Paula Xinis. Xinis, an Obama nominee, last week dismissed a lawsuit filed by an accused student from the University of Maryland.
Scott Greenfield already has eviscerated Xinis’ opinion—which joins that of Judge Ronnie Abrams in the Vassar lawsuit as the most enthusiastic in favor of a college or university. But I wanted to draw attention to one, remarkable passage, with emphasis added:
Doe attempts to support his “pressure” theory by asserting that after the Dear Colleague letter (1) “virtually all cases” of sexual misconduct at UMCP have involved “female complainants against male respondents;” (2) “communications between UMCP officials” reflect “UMCP’s intent to favor female students alleging sexual assault over male students accused;” and (3) “Defendants[’] deliberate indifference to the gender bias and hostile environment exhibited towards the Plaintiff . . . was for the purpose of demonstrating to [OCR] and the public that UMCP was aggressively disciplining male students accused of sexual misconduct.”
Deeply troubling, however, is Doe’s utter lack of a good faith basis to make such assertions about [the University of Maryland].
The only outrage Judge Xinis was able to muster in her opinion came not for a student whose complaint indicated he might have been wrongfully found guilty, but for the Maryland’s Title IX process that oversaw his case.
What might have prompted the accused student’s lawyer to suggest pressure produced a biased investigation in his case?
Perhaps it was bad faith. Or perhaps it was that:
- Maryland’s Title IX office refused to provide him with the accuser’s initial statement (to the campus police), which denied him an opportunity to impeach his accuser.
- At his initial meeting with Maryland’s Title IX office, he was provided with no summary of Maryland’s procedures or the specifics of the complaint against him.
- The accused student claimed that his interview with the Title IX investigator inaccurately recorded his statements (there was no way to prove the claim, since the investigator doesn’t record his interviews).
- Multiple exculpatory witnesses filed affidavits asserting that the investigator (despite his subsequent testimony) had never attempted to contact them.
- Maryland procedures prevented the accused student from asking questions of either the accuser or the investigator.
It’s true that the accused student presented no evidence that outside pressure caused Maryland to adopt such unfair procedures. But the assertion of pressure leading to unfairness was hardly implausible—and, in any case, the alternative (which Xinis implicitly accepted) is that Maryland created unfair procedures all on its own, which would raise due process concerns.
In her opinion, Xinis faulted the accused student for claiming—without evidence—that “’virtually all’ complaints at UMCP are lodged by female victims.” But as another Obama-nominated judge (in a case from IUPUI) noted, “Although [the accused student’s] pleading may lack the contours of more particularized facts, the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [the accused student], notably refusing, at all times, to share such information with [the accused student] or his attorneys. In this regard, the Defendants cannot have it both ways, restricting access to the facts and then arguing that [the accused student’s] pleading must be dismissed for failure to identify more particularized facts. Instead, whether the facts alleged sufficiently ultimately support a claim for intentional gender discrimination under Title IX is a question for a later stage in this litigation, after fair and robust discovery by both sides.”
Nor was the suggestion a bad-faith one—after all, the only national data that appears to exist on this matter (from United Educators) indicates that 99 percent of accused students are male.
Nor, Xinis continued, did the student’s suggestions that Maryland consistently favored accusers indicate gender bias, because accusers can be both male and female. (We have no way of knowing, of course, whether there have been any male accusers in Maryland’s proceedings.) It’s true, Xinis conceded, that Maryland’s Title IX coordinator, in a 2015 article, employed “hypothetical scenarios” about campus sexual assault that referenced only “female sexual misconduct victims and male perpetrators.” But even though the statement undermined Xinis’ claims about the gender-neutral conception of Maryland’s policies, she held it couldn’t possibly indicate a gender bias—for reasons she declined to explain.
Doing so, alas, might have undermined the real victims in this case, according to Judge Xinis—Maryland’s Title IX office.