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Title IX and the Alleged Victimization of Men: Applying Twombly to Federal Title IX Lawsuits Brought by Men Accused of Sexual Assault
This Note provides a survey of the current state of Title IX law as applied to anti-male bias lawsuits and suggests how courts should apply Twombly’s plausibility standard to anti-male bias claims going forward. Part I of this Note provides an overview of sexual violence on college campuses and the history of Title IX regulations and jurisprudence. Part II offers a brief history of Title IX anti-male bias lawsuits, examines the structure of anti-male bias lawsuits, and analyzes the various pleading standards applied by courts. Part III lays out the types of facts pled by Title IX anti-male bias plaintiffs and discusses what facts should be viewed as sufficient to meet Twombly’s plausibility standard. In Part IV, this Note looks at the future of Title IX anti-male bias lawsuits in light of new federal regulations and discusses the implications of these lawsuits for claimants and respondents in campus Title IX proceedings.Reasonableness in Hostile Work Environment Cases After #MeToo
The #MeToo movement, a global social response to sexual harassment in the workplace, has turned the traditional approach to sexual harassment on its head. Instead of shielding perpetrators and discrediting survivors, employers, the media, and the public have begun to shift from presuming the credibility of the perpetrator to presuming the credibility of the survivor. But this upending of the status quo has occurred almost entirely in the social sphere—and the legal system, where survivors of workplace sexual harassment can seek remedies for the abuse they have suffered, is proving much slower to adapt. While our social presumptions are flipping to center the behavior of the accused instead of the accuser, the legal standard for workplace sexual harassment still focuses squarely on the victim’s reasonableness. In order to bring a legally actionable claim of sexual harassment, a victim must demonstrate that she was objectively and subjectively reasonable in believing that she was subjected to sexual harassment. Even if she succeeds in demonstrating this, if her employer had mechanisms in place to address sexual harassment, she must also demonstrate that her response to her harassment— such as reporting or not reporting the harassment through an employer’s complaint process—was reasonable. This Comment analyzes the effects of the #MeToo movement on federal courts’ definitions of sexual harassment under the existing legal standard. Since reasonableness is a socially-defined term, courts have plenty of room to incorporate shifting conceptions of sexual harassment into their jurisprudence—but many are remarkably slow to do so. While it is too soon to state definitively what effect #MeToo will have on sexual harassment law in the long run, this Comment should leave practitioners and scholars with a clearer picture of the direction circuit courts have taken since #MeToo began. LSymbolism Over Substance: The Role of Adversarial Cross-Examination in Campus Sexual Assault Adjudications and the Legality of the Proposed Rulemaking on Title IX
Traditionally, it has been understood that campus sexual assault adjudications need not take on the formalities of the justice system. Since the consequences faced in campus adjudications are considerably less than punishments faced in the justice system, less process is owed under the Due Process Clause. However, in September 2018, the Sixth Circuit reconceived what constitutes due process in campus sexual assault adjudications in the case of Doe v. Baum. The court found that in cases involving conflicting narratives at public universities, the accused or his agent must have the ability to cross-examine his accuser in the presence of a neutral factfinder. On November 29, 2018, the Department of Education took Baum several steps further in a proposed rulemaking on Title IX, mandating cross-examination in all campus sexual assault cases at both public and private universities. In this Comment, I argue that the proposed rulemaking on Title IX goes too far, misinterpreting the case law and the dictates of due process, while neglecting empirical evidence and foreseen adverse consequences. I argue that the proposed rulemaking misinterprets case law—most notably the recent Baum decision— by failing to appreciate important limits to the scope of compulsory cross-examination. I also unpack the vast negative implications of the proposed rulemaking, including drops in reporting rates and considerable institutional costs. As a result of these legal shortcomings and practical implications, I argue that the proposed rulemaking fails to pass the Mathews balancing test. As universities, the federal government, and courts determine how best to adjudicate campus sexual assault allegations, all efforts must be taken to minimize trauma to the victim, safeguard the rights of the accused, and protect the financial viability of educational institutions.