Levy, Miltenberg: “10th Circuit Reinstates Lawsuit Alleging Anti-male Bias in DU Sex Assault Investigation,” Colorado Politics


A student expelled from the University of Denver after a sexual assault investigation had his lawsuit against the school reinstated on Tuesday, after the federal appeals court based in Denver determined he had plausibly alleged an anti-male bias in the university’s investigation of the incident. The decision in the case of “John Doe,” as the former student is identified, comes one year after the U.S. Court of Appeals for the 10th Circuit dismissed a similar lawsuit from a male student who also claimed DU’s investigatory process was biased against men and toward women. At the time, a three-judge appellate panel decided that a process generally favoring victims who were largely women did not necessarily equate to discrimination against men. By contrast, the ruling in the current case hinged on specific allegations of the university’s uneven treatment of Doe and his female accuser during the inquiry. “While a one-sided investigation, standing alone, might only raise a reasonable inference of anti-complainant bias,” wrote Chief Judge Timothy M. Tymkovich in the 10th Circuit’s June 15 opinion, “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.” Chloe M. Neely, an attorney with The Fierberg National Law Group who represents victims of school-related violence, said the Doe decision signifies a shift in how courts are beginning to handle cases under Title IX, the federal civil rights law that forbids discrimination in educational programs on the basis of sex … Adrienne Levy, a New York-based lawyer representing Doe in the current University of Denver case, said she believed her client’s appeal was successful partly because of the amount of evidence presented, as well as how precisely it suggested a sex-based bias. “The statistics presented here did not represent a simple gender disparity in who is a complainant and who is a respondent,” Levy said. “They showed disparities in how DU handled complaints brought by women versus complaints brought by men, as well as disparities in how it treated complaints against women versus complaints against men.”

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