The court details the factual claims in the case. Both students were apparently very drunk when Jane Roe went back to her room with John Doe. The court details how Roe’s account changed on critical details and did not claim assault after that night. It was later, after speaking with friends, that she made the allegation. The court notes that, over the course of days, Roe told Doe that she was “letting other people tell” her whether she was assaulted. Doe responded, “oh my god [Jane], there’s a difference between regret and assault.” The Court also notes that witnesses stated that Roe was upset because Doe had discussed the evening with others. Such conflicting accounts (and delayed claims) are not uncommon and are not inherently determinative. However, it is systemic failures of the university that is most clear and chilling in the account that follows. Doe cooperated in the investigation. He sat down for an interview and gave the university a list of five witnesses to his account. DU simply refused to interview them while it interviewed 11 of Roe’s proposed witnesses. It was only after the release of its preliminary report that DU agreed to interview one witness, Doe’s psychologist, Mary Bricker. Bricker later objected that the summary of the interview was highly distorted and that the interviewer showed obvious bias.
DU made critical errors in its report. It claimed for example that six witnesses proposed by Roe substantiated her account when only three witnesses did so. DU also ignored the fact that Roe’s own account changed including whether she was assaulted on Friday or Saturday. DU also ignored the accounts that Roe was mad at Doe for discussing their evening with others and had wanted a longer relationship.
“In response to John’s showing of a prima facie case, the University posits a legitimate, non-discriminatory reason for its conduct: the University employees were biased against sexual-misconduct respondents, regardless of their sex. If true, this type of explanation—though at odds with general notions of due process—would not expose the University to Title IX liability, because respondent and complainant are (at least in the abstract) sex-neutral classifications.”
So DU appears to be saying “Due process be damned,” we are all about convictions.
The Court also did not buy that DU was actually blind on gender and just biased against defendants. It noted that:
“John highlights that the University failed to formally investigate any of the twenty-one sexual-misconduct complaints brought by men from 2016 to 2018. In contrast, during the same period, there were about 105 complaints brought by women, fourteen of which were formally investigated by the University.
…Moreover, from 2016 to 2018, the University received five complaints brought against a female. Four of those complainants were male and one was female. The University did not formally investigate the four male-initiated complaints but did investigate the female-initiated complaint.”
The record in the case is a disgraceful account of the denial of basic due process. It led the Court to rule:
“In sum, viewing the evidence in the light most favorable to John, we are satisfied that a reasonable jury could find that John’s sex was a motivating factor in the University’s decision to expel him. While a one-sided investigation, standing alone, might only raise a reasonable inference of anti-complainant bias, Doe I, 952 F.3d at 1203, where there is a one-sided investigation plus some evidence that sex may have played a role in a school’s disciplinary decision, it should be up to a jury to determine whether the school’s bias was based on a protected trait or merely a non-protected trait that breaks down across gender lines.”
The case is Doe v. University of Denver.