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.
The accused student, known in court documents as John Doe, was a freshman at DU in the fall of 2014. In October of that year, he had a sexual encounter with a female freshman in his dorm room. Six months later, the woman – 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 but are able to afford an attorney to try and get their life back.
For John, however, a panel of three judges upheld a lower court’s decision to dismiss with prejudice his Fourteenth Amendment Due Process and Title IX claims, but dismissed without prejudice Joh’s state-law claims and claim for declaratory relief. In a footnote to the ruling, the judges included a long list of ways DU violated John’s due process rights, writing that school investigators:
- refused to follow leads that were potentially exculpatory;
- disbelieved Plaintiff from the outset due to the “innate motive” respondents have to lie about wrongdoing, while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter with Plaintiff, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews;
• selectively determined which post-encounter evidence they would consider relevant (e.g., considering Jane’s allegation that Plaintiff offered her Aderall after the encounter in assessing Plaintiff’s credibility but not considering Jane’s inconsistent statements on whether the two saw each other after the encounter in assessing her credibility);
• allowed Jane’s boyfriend to act both as Jane’s support person who was present at her interviews and as a fact witness who provided information in the proceeding to corroborate Jane’s story and to impeach the testimony of witnesses who contradicted her story, in violation of DU’s policies;
• selectively viewed Jane as “heavily intoxicated,” implicitly rejecting Plaintiff’s and his roommate’s statements that Jane exhibited no indication of intoxication in order to support a finding that Plaintiff coerced Jane into sex but then accepting Plaintiff’s and his roommate’s statement in order to find that Jane’s intoxication had little effect on her ability to accurately recollect the encounter that night;
• faulted Plaintiff for making corrections to his summary statement and used it to attack his credibility, despite expressly inviting Plaintiff to make such corrections and apparently violating DU’s informal policy allowing interviewees to correct summary statements in order to accurately reflect their testimony;
• emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend;
• suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication;
• viewed Plaintiff’s roommate’s statements corroborating Plaintiff’s story as tainted by Plaintiff’s and his roommate’s prior conferral regarding the events of that night, while not applying this same logic to the statements of Jane’s friend who corroborated Jane’s story, even though Jane called her friend specifically to relate to him “her portrayal of the night” and to tell him “that it was rape”;
• attacked Plaintiff’s and his roommate’s credibility on the grounds they seemed overly eager to offer consistent denials of any on-campus alcohol use, without applying the same logic to the vague and inconsistent stories provided by Jane and her friend regarding their own on-campus alcohol use, even though DU offers amnesty to complainants who admit to on-campus drug and alcohol use, but not to respondents.
The judges themselves called what happened to John “a railroading.”
“But an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading,” they wrote.
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.