Nightmare at Oberlin

Things haven’t gone well for Oberlin College in court recently. First, it was found liable for defaming Gibson’s Bakery. After the bakery’s owner tried to stop a black student from shoplifting, the Oberlin student senate condemned the bakery as racist and called for a boycott of its products, which Oberlin stopped purchasing for a time. A jury awarded the Gibson family $44 million in damages, reduced to $33 million by operation of Ohio law. The case is on appeal in state court (not federal court, as I mistakenly said in the original post).

Now, the U.S. Court of Appeals for the Sixth Circuit has ruled that a male student may proceed with a claim of sex discrimination against Oberlin for railroading him out of the college for alleged sexual assault. The case was filed under Title IX, which bars universities that receive federal funds from discriminating against students based on their sex.

Although the male student will now be able to present his claim against Oberlin, he still has suffered through a nightmare that even a successful lawsuit will not fully mitigate.

For purposes of determining whether the male student can proceed with his case, the facts he asserts must be taken as true. However, the basic facts here are undisputed, or were until the woman who accused the student of assault changed her story.

A male student, John Doe had consensual sex with a female student, Jane Roe, in December 2015. In February, Doe texted Roe and asked “what are you up to tonight?” Roe said she was about to smoke marijuana in a room in Doe’s dorm. She asked, if it was “cool” if she came to his room afterwards. Doe said yes.

Roe did come to Doe’s room. After some small talk and foreplay, they began to have intercourse, using a condom, at Roe’s request. At some point they stopped and then resumed until Roe said she was “dry” and “not sober.” At that point, Doe stopped but asked Roe if she would perform oral sex. Roe agreed.

Nine days later, Roe complained to Oberlin’s Title IX coordinator that Doe had sexually assaulted her. Oberlin policy states that investigations of a sexual assault claim should usually take no more than 20 days and resolution of the entire matter no more than 60. However, it took the college’s investigator 120 days just to issue a report.

During the investigation, Roe agreed that Doe had asked her to perform oral sex. But when the hearing finally took place, she changed her story. She claimed that Doe never asked, but instead grabbed her by the neck and forced her mouth onto his penis. Doe denied using any force on Roe.

In October 2016, about 240 days after Roe complained, the hearing panel issued its decision. It found Doe guilty of sexual assault because he had not established that effective consent was maintained through the entire sexual encounter. Consent was absent, the panel found, from the moment Roe told Doe she was “not sober.”

The panel recommended that Doe be expelled. Oberlin expelled him.

Doe sued under Title IX. The district court dismissed his case for failure to state a claim.

The Sixth Circuit reversed by a vote of 2-1. Judge Raymond Kethledge, a Bush 43 appointee and reported finalist for the Supreme Court vacancy filled by Neil Gorsuch, wrote the opinion. He was joined by Judge Chad Readler, a Trump appointee. Judge Ronald Lee Gilman, a Clinton appointee, dissented.

On appeal, it was agreed that Doe alleged facts sufficient to establish the first of the two elements needed to sustain his Title IX claim — that there is doubt as to the accuracy of the disciplinary proceeding outcome. The appeal turned on whether Doe alleged facts sufficient to demonstrate the other required element — a “particularized causal connection” between the flawed outcome and sex discrimination.

The majority found that Doe alleged such facts. Among other indicators of a connection with sex discrimination, the court noted that during the time of the investigation, hearing, and decision, Oberlin was under pressure from the Obama administration to crack down on sexual assault or else lose federal funding.

In this regard, Oberlin boasted in 2016 that every single case that went to a hearing resulted in the accused being found guilty on at least one charge. The court found that a 100 percent guilty record in cases where most if not all respondents were male supports an inference of bias.

The court also leaned heavily on the merits of the decision itself. This wasn’t just a case in which the facts cast doubt on the accuracy of the outcome. Here, the decision was seemingly inexplicable, given the facts, except as discrimination against the male on the basis of his sex.

Oberlin’s own policy states that intoxication doesn’t negate consent — only “incapacitation” does. The policy also states that incapacitation means the alleged victim “lacked conscious knowledge of the nature of the act” (here oral sex), or no longer understood who she was with or what she was doing, or was asleep, unconscious or otherwise unaware that sexual activity was occurring.

The facts make it clear that none of these conditions of incapacitation was satisfied in this case. For example, Roe was able to arrange the hookup via texts. She engaged in small talk with Doe before they began foreplay. She remembered to request the use of a condom.

She wasn’t asleep or unconscious. She knew what she was doing and with whom she was doing it. Manifestly, she was not incapacitated.

The majority called this matter “nearly a test case regarding the college’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year.” I worry that it’s also a classic and tragic example of the rampant unfairness in the handling of sexual misconduct claims brought against male students at our colleges and universities.

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