Columbia University's Low Memorial Library
Columbia University’s Low Memorial Library (AlMare/Wiki)

A male student who claims he was wrongly disciplined by Columbia University for a nonconsensual sexual encounter that he says was consensual should be allowed to sue school officials under federal anti-discrimination laws, his lawyer told the U.S. Court of Appeals for the Second Circuit Tuesday.

Attorney Philip Byler said his client was the victim of an administration bowing to public pressure to stop sexual predators and believing that all misconduct allegations against male students are true.

He said his client “was made an example of for no other reason than political correctness.”

Byler was asking the court to reverse a lower court’s dismissal of his lawsuit, brought under Title IX, which bars colleges and universities that receive federal funds from discriminating based on gender.

Title IX has traditionally been used to require equity for women in the funding of athletic and other programs, but its terms have been used more recently to combat the handling of sexual harassment and sexual assault allegations on campuses.

Columbia’s attorney, Paul Wolfson, a partner at Wilmer Cutler Pickering Hale and Dorr, told the circuit that the lawsuit was rightly dismissed by Southern District Judge Jesse Furman. Wolfson said the investigation was conducted properly and the board that disciplined the student in Doe v. Columbia University, 15-1536-cv, found “he had subjected her to sexual pressure over the course of weeks.”

“Your honor, there was no rush to judgment here,” Wolfson said to Judges Christopher Droney, Pierre Leval and Southern District Judge John Koeltl, sitting by designation.

The plaintiff, known only as John Doe, is a member of the Columbia Class of 2016 who, in 2012, shared the same residence hall and social circle as Jane Doe, who had dated John Doe’s roommate.

On May 13, 2013, the two students had sex in the bathroom of Jane Doe’s suite. John Doe said it was consensual and that Jane Doe took the lead in several respects.

In the weeks that followed, John Doe alleged, Jane Doe expressed to him concern about how their encounter might appear to others in their social circle.

But she took no immediate action, and Doe was not informed until after he returned from summer recess that year that a sexual misconduct claim had been filed against him. After a hearing, he was suspended by the school, and his appeal was denied.

In dismissing the case, Furman found that Doe had offered no more than conclusory and “sometimes overwrought” statements about Columbia’s alleged bias against male students in sexual misconduct cases (NYLJ, April 24, 2015).

Furman noted Doe’s statement that men at Columbia accused of sexual misconduct “are invariably found guilty” is at odds with his assertion that Columbia had been subject to “great criticism” and “negative public scrutiny” because the school is “not being firm enough” in its treatment of sexual assault.

The circuit asked several questions of Wolfson on the pleading standards, wondering whether Byler and his client hadn’t alleged enough to state a claim under Title IX.

The judges also wondered about how to analyze this case in light of Yusef v. Vassar College, 35 F.3d 709 (2d Cir. 1994) where the circuit used a framework to break down suits attacking disciplinary proceedings by colleges into to two types—either the student was innocent (or the victim of an “erroneous outcome”) or the student claims he was the victim of selective enforcement by being punished too harshly or charged because of his gender.

The Yusef court insisted that a plaintiff must “also allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”

Byler, senior counsel at Nesenoff & Miltenberg, told the circuit that Furman was wrong to downplay Columbia’s procedural flaws that Byler insisted were an important part of his “erroneous outcome” argument.

Byler took aim at the investigation, saying “the investigator approached John Doe basically saying ‘Confess. Confess. Confess.’ It’s distressing to see the district judge treat it as conclusory.”

When Wolfson argued, Koeltl asked him, “If everything that night and that morning was consensual, aren’t those sufficient facts or allegations that at least raise triable issues of fact?”

“We don’t take issue that she agreed to have sex,” Wolfson said, but “I challenge the use of the word consensual” because of the pressure John Doe put on the woman leading up to the encounter.

Byler, he said, “can’t avoid his pleading burden by simply saying nothing ever happened.”

Leval noted to Byler that the allegations included that Columbia had faced pressure in the media and by students, and the administration had announced a campus-wide “town hall” meeting to discuss the issue in the fall of 2012, after Doe had been accused.

So when Wilson said those statements and the conclusory allegation that males are railroaded in sexual misconduct allegations didn’t prove anything, Leval said “I didn’t say it proved it.” The appeal, he stressed, was only about what it takes to survive the pleading stage.

When Koeltl said Byler had alleged that “males are invariably found guilty regardless of the allegations,” Wolfson said, “I think that allegation is undermined by other” factors.

Droney told Wolfson, “You seem to be requiring a rule that requires a smoking gun” on discriminatory intent.

Wolfson demurred, saying, “I don’t think a smoking gun is required where a university makes deviation from longstanding practices.”