In a shocking ruling, the U.S. Court of Appeals for the Tenth Circuit outlined numerous ways in which the University of Denver (DU) railroaded an accused student despite serious deficiencies in the accuser’s story, but didn’t overturn his expulsion because it claimed the due process violations weren’t related to the accused student’s gender.

2014 Background: John Doe was a freshman at DU. He had a sexual encounter with a female freshman in his dorm room. Six months later the female– at the insistence of her then-boyfriend – accused John of sexual assault. John was expelled and filed a lawsuit like many wrongly accused students who were denied due process.

2020 Ruling:  In response to the evidence, to the arguments, Judge McKay wrote along these lines.

To the extent Plaintiff contends that an inference of anti-male bias arises from DU’s attempts to encourage sexual-misconduct reporting generally, we find any such argument unpersuasive. At most, encouragement of this nature might possibly be construed as exhibiting a bias against potential respondents because it increases the likelihood that potential respondents will be subjected to investigation and possibly sanctioned if found responsible. But both men and women can be potential respondents, and therefore any bias against them would not be bias on account of gender.

There was no doubt whatsoever that there was bias. There was no doubt, none, that University of Denver railroaded the plaintiff. The judges themselves called what happened to John “a railroading.”

Even after all this, the judges decided John hadn’t proven his claims to their satisfaction. Specifically, they wrote that even though 35 of 36 accusers at DU between 2011 and 2016 were female and all accused students were male, there was not enough evidence to suggest the school had an anti-male bias. Instead, they said it was simply an anti-accused bias.

This is a common claim that only works in court. On campus, women use Title IX to claim gender discrimination because they say they are the majority of sexual assault victims. Then it would seem it would be gender bias to railroad accused students since they are the majority of the accused. But we don’t live in a fair world.

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A year ago Michigan State University refused to comply with an appeals court precedent that requires an in-person hearing with cross-examination to students facing suspension or expulsion for sexual misconduct. It didn’t follow through until a medical school student sued the taxpayer-funded institution for depriving him due process in a proceeding stemming from three-year-old accusations by two female students in his program. Robby Soave at Reason has a sad update to the case: “Dev,” the son of Sri Lankan immigrants, has little chance of ever getting his degree and being able to pay back his $283,000 in medical school debt. The federal judge who ordered MSU to let Dev take necessary exams for his program a year ago ultimately blessed its unfair process in a December ruling, according to Soave, who has reviewed the full case file. Dev also lost his attorney in January and can’t afford “the caliber of lawyer” he needs to successfully appeal.

“The elephant in the room, of course, is Larry Nassar,” Soave writes in his exhaustive feature, referring to the MSU doctor who was later convicted of “serial sexual abuse” against female Olympic gymnasts. MSU’s failure to stop Nassar-who was credibly accused of molesting more than 250 girls- is, of course a travesty. But a course correction that involves automatic suspicion of the accused and departures from due process norms is not the right remedy. Unfortunately, this is exactly what has occurred on college campuses all over the country.

The elements of Dev’s case resemble many others. A night of drunken sex that one party claims was consensual and another party remembers differently; a significant passage of time; an insinuation that eventually becomes a formal accusation; a fraught effort to mount a defense; a life-derailing finding of guilt. Each party’s account of the debauched night’s events was a contradictory mess, but MSU wanted a guilty finding against Dev. 

He is one of many students who find themselves in this situation. According to The Atlantic‘s Emily Yoffe, 40 percent of alleged victims do not immediately report what happened, and the average period of delay is 11 months.

How can these men defend themselves against this kind of accusation, when neither they nor their accusers remember everything that happened? How do they prove beyond a doubt that the people giving evidence against them—who themselves made embarrassing decisions—had reason to distort the truth, to disguise their own moral failings? How does an ostensibly fair system determine that exactly one person—Dev—must pay for what happened that night, and suffer the end of his career aspirations, social stigma, and permanent crippling debt, because of it?

“I’m broken,” says Dev. “I can’t fight this.”

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Below is a case that really highlights how inept schools are at adjudicating claims of sexual assault. 

On October 24, 2015, a young woman left the Orange Crate Bar in Syracuse, New York around 1:00 a.m. She later said a black man followed her out, and proceeded to sexually assault. A woman passing by grabbed ‘Jane’ and pulled her away from the man. Jane reported the incident to police, describing her alleged attacker as a “dark-skinned male” about 5’9” tall, and “heavy set with black dreadlock style hair.” Jane could not remember anything else as she was heavily intoxicated the night of the incident. Police took her report but could not locate the alleged attacker. Jane was shown a photo array but she could not identify anyone. The matter seemed to go away until January 2016, when Jane told Syracuse police she saw a person in a bar that resembled the man she believed attacked her.

In a telling sign, Jane told Syracuse police she didn’t want ‘John’ criminally charged and that she preferred to have Syracuse University’s Title IX office handle her claims. Had police handled the investigation, they would have likely discovered that John was not Jane’s attacker, but by going through the school process, where poorly trained bureaucrats believe just about every accusation for fear of being labeled rape apologists, John would likely be expelled for a crime evidence says he didn’t commit. No matter, though, Jane believed John was the man who assaulted her, so he needed to be punished.

Syracuse formerly opened an investigation into John. A letter informed John that he had been accused of sexually assaulting another Syracuse student. John was immediately placed on an interim suspension. John says Syracuse discouraged him from seeking advice from an advisor. He was issued a no contact order that placed restrictions on him making it difficult to investigate the charges against him… The university found John had likely sexually assaulted Jane and upheld his interim suspension.

The evidence used against John was the fact that he had also been at the same popular bar as Jane the night of the alleged incident and that Jane had identified him in that photo lineup after seeing him at another bar. John maintained his innocence and provided credible evidence he was not the attacker, yet the school went forward based on the accuser’s word.  The university appeals board concluded John was “not completely credible” and claimed he didn’t give a factual statement regarding the incident. John, in his lawsuit, disputes the claim, saying he denied assaulting Jane and had provided Syracuse with evidence from his phone showing he was on his phone with friends at the time he was allegedly attacking Jane. The school found Jane credible despite different versions of the night in question and her admitted intoxication. Syracuse, according to John’s lawsuit, chose one of Jane’s version of events and stuck with it, going so far as to call conflicting statements in her police report “inaccurate.”  John’s lawsuit concluded that Syracuse rejected his evidence, claiming the text messages he provided were not an “official phone record” and didn’t “support or refute whether the alleged incident occurred.”

This is not a case of two people who knew each other hooking up and regretting it, this is a case where one student says a stranger assaulted her, and the alleged stranger said it wasn’t him and provided phone evidence to support his claim. Jane didn’t testify at John’s hearing, so he couldn’t cross-examine her and the school hearing board couldn’t adequately “assess [her] credibility.” Even though the hearing board never even heard from Jane, they deemed her testimony “mostly credible” and ruled that John “more likely than not” assaulted Jane.

John was suspended. He sued Syracuse, which tried to dismiss the lawsuit. A judge denied their motion to dismiss, and on February 26, 2020 – more than four years after the alleged incident – John and Syracuse agreed to an undisclosed settlement, as reported by author and professor K.C. Johnson.

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