Boys, men, and Title IX

The year 1972 was important for gender equality. In March, Congress approved the Equal Rights Amendment, although it would later fail to be ratified by enough states to become part of the Constitution. It was also the year Congress passed Title IX, the federal law prohibiting sex discrimination in education.

Because of its impact on interscholastic sports, some mistakenly believe that Title IX is limited to increasing athletic opportunities for girls and women. In fact, Title IX broadly protects all people — male, female, transgender, or nonbinary — from sex discrimination of any kind, including sexual or sex-based harassment, in all federally funded education programs.

In recent years, Title IX cases involving male students have begun to appear more frequently. Some involve male victims of sexual harassment. Others involve complaints filed by male students accused of sexually harassing female students. The application of Title IX to boys and men (including gender-nonconforming and transgender males) reveals how civil rights laws can be interpreted expansively to address kinds of discrimination unthought of in 1972. But it also shows how enforcement of a law designed to promote equality can change — even to the point of subversion — when those seeking to avoid punishment use the law itself a shield.

Male victims of harassment sue under Title IX

In Lipian v. University of Michigan (E.D. Mich., 2020), a male vocal student at the University of Michigan School of Music, Theatre, and Dance alleged that a male professor sexually harassed and assaulted him. He further alleged that the university both ignored repeated warnings that the professor was sexually aggressive and took complaints of harassment against men less seriously than those against women, in violation of Title IX. The court denied the university’s motion to dismiss the case, sending it to trial.

In a separate case (John DOE MC-9 v. University of Michigan, E.D. Mich., 2020), the University of Michigan recently agreed to a $490 million settlement with more than 1,000 victims —mostly men — who alleged they were sexually assaulted by a former sports doctor employed by the university, in violation of Title IX and other laws. Michigan State University recently entered into its own $500 million settlement, in the case involving sports doctor Lawrence Nassar, who sexually abused hundreds of women and girls. Clearly this hasn’t been a banner decade for Title IX compliance in the Wolverine State.

At the K-12 level, in S.E.S. v. Galena Unified Sch. Dist. No. 499 (D. Kan., 2020), a male student claimed that his school violated Title IX by failing to protect him from gender-based harassment consisting of negative comments about his hair and appearance; unwanted physical contact; and various forms of name-calling, such as “gay,” “queer,” “bitch,” “fag,” and “faggot.” The court agreed that failure to address harassment that resulted from a student’s nonconformity with “stereotyped expectations for [the student’s] gender” could constitute discrimination because of sex, in violation of Title IX.

Title IX cases have also ventured beyond gender stereotyping. Following the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County (see Kim, 2020), federal and state courts have ruled that Title IX’s prohibition of discrimination “on the basis of sex” encompasses discrimination on the basis of sexual orientation or transgender status. In Clark County School District v. Bryan (Nev., 2020), for example, the court held that harassment motivated by perception of a harassed student’s sexual orientation falls under the purview of Title IX. And in Grimm v. Gloucester County School Board (4th Cir., 2020), the court determined that forbidding a transgender student from using the restroom corresponding with his gender identity constituted discrimination “on the basis of sex” under Title IX. However, in a contradictory turn, a federal appeals court held in Adams v. School Board of St. Johns County (11rh Cir., 2022) that segregating public school bathrooms and locker rooms by biological sex and refusing to accommodate transgender students does not violate Title IX.

With few exceptions, Title IX cases involving male victims dispel the myth that male students do not experience harassment or discrimination on the basis of sex. They also counter the trope that males should “toughen up” and keep the harm they’ve experienced quiet. Instead, these cases support the notion that all people — regardless of their sex, sexual orientation, or gender identity — are entitled to equal protection in education settings and should seek redress when schools fail to deliver on that guarantee. So far, so good.

Males accused of sexual harassment sue under Title IX

Another rash of cases involves male college students accused of sexual harassment who argue that their schools are violating their due process rights and discriminating against them by exhibiting anti-male bias in disciplinary proceedings. These cases present a complicated new development in Title IX law, and not all of it is positive.

In Doe v. Purdue University (7th Cir., 2019), a male student, “John Doe,” sued after the university suspended him for a year following its determination that he had committed sexual violence against a female student. The suspension resulted in the termination of his ROTC scholarship and his plan to join the Navy. In his court filing, Doe argued, unremarkably, that Purdue had violated his right of due process under the 14th Amendment. But he also alleged that Purdue had engaged in sex discrimination against him, in violation of Title IX.

In a decision penned by then-Circuit Judge Amy Comey Barrett, the court ruled that Doe’s due process claim was valid, noting (among other things) that the university had failed to share with him the evidence used to determine his culpability and that the appointed adjudicators hadn’t bothered to read the notes from the investigation materials or even speak to Doe’s accuser to determine her credibility.

Nothing terribly unusual or objectionable here. Schools shouldn’t be held to the same due process standards as those governing civil or criminal trials, and the requirement to provide due process shouldn’t be used to evade civil rights laws. But the rights of students accused of committing serious acts should be treated seriously. Punishment based on slipshod procedures not only is unfair to the accused but also fails to adequately protect the community from dangerous behavior. In fact, Purdue isn’t the only recent Title IX case involving due process concerns. Given the variability of discipline and investigation protocols in schools around the nation, it’s perhaps inevitable that courts have responded favorably to allegations of due process violations in other Title IX cases, including Haidak v. University of Massachusetts-Amherst (1st Cir., 2019) and Doe v. Baum (6th Cir., 2018).

The trouble is that the Purdue court didn’t stop there. It went on to hold that the facts suggested that the university had acted on the basis of sex in its mishandling of his case, in violation of Title IX. The court cited many of the same facts used to support Doe’s due process claim: a cursory and insufficient hearing, a deficient decision-making process, a failure to determine the accuser’s credibility, and the refusal to consider evidence submitted by the accused student. For the court, these facts made it plausible that the university “chose to believe [the female accuser] because she is a woman and to disbelieve [Doe] because he is a man.” (It didn’t help that the university’s sexual violence support center had posted on Facebook a Washington Post article titled: “Alcohol isn’t the cause of campus sexual assault. Men are.”)

Certainly, schools whose procedures or personnel are “infected by sex bias” (to use the plaintiff’s words in Purdue) must be held to account. But is slipshod procedure a sign of sex bias? In a 2021 law review article, Alexandra Bolger, Dana Brodsky, and Sejal Singh note how a growing number of courts are supporting the notion that alleged bias against students accused of sexual misconduct is, inherently, bias against men — even though not all accused students are men, and victims of harassment include both men and women. They cite cases like Purdue, in which courts treat sex-neutral procedural missteps by schools as evidence of anti-male bias. In making an “inferential leap from anti-respondent policies to anti-male bias,” they argue, courts are enacting the very “bias and stereotyping they purport to condemn.”

There’s something unsettling about individuals accused of violating the spirit of a law invoking that same law to defend against the accusation. It’s also not new. This maneuver in Title IX cases is somewhat reminiscent of reverse discrimination cases in which white students have invoked civil rights laws used in school desegregation cases to ban affirmative action (most recently at Harvard and the University of North Carolina). The sense of backwardness is compounded by courts’ growing acceptance of this tactic.

Without question, Title IX must be enforced in a way that protects all persons irrespective of their sex or gender and upholds the rights of both accused and accuser. But in the process, the law must not become as much a vehicle to avoid responsibility for discrimination as it is a safeguard for those subjected to it.

References

Brodsky, A., Bolger, D., & Singh, S. (2021). A tale of two Title IXs: Title IX reverse discrimination law and its trans-substantive implications for civil rights. UC Davis Law Review, 743.

Kim, R. (2020). The historic Bostock opinion and LGBTQ rights in schools. Phi Delta Kappan, 102 (2), 64-65.

This article appears in the April 2023 issue of Kappan, Vol. 104, No. 7, pp. 62-63.