Flip It and Reverse It: Examining Reverse Gender Discrimination Claims Brought under Title IX

By McMullan, Courtney Joy | Washington and Lee Law Review, Fall 2019 | Go to article overview

Flip It and Reverse It: Examining Reverse Gender Discrimination Claims Brought under Title IX


McMullan, Courtney Joy, Washington and Lee Law Review


Table of Contents

I. Introduction..................1826

II. Overview of Campus Sexual Assault...................1832

A. Campus Sexual Assault...................1832

B. Title IX and Federal Guidance...................1834

C. University Disciplinary Processes...................1838

D. Title IX and Due Process...................1841

III. Stating a Reverse Title IX Claim...................1842

A. Causes of Action...................1844

B. Pleading Standards and Motions to Dismiss...................1849

1. Yusuf Baseline Standard...................1851

2. Yusuf Applied at Motions to Dismiss...................1852

IV. Reverse Title IX and Summary Judgment...................1854

A. Summary Judgment Burdens and Burden Shifting ...................1854

B. Cases Reaching Summary Judgment...................1857

1. First Circuit...................1857

2. Sixth Circuit...................1861

3. Title IX and McDonnell Douglas...................1863

V. Argument...................1867

A.Limiting Courts' Consideration of Pressure on Universities...................1868

B. Policies and Purposes of Title IX...................1869

C. Maintaining a High Discriminatory Intent Burden...................1871

VI. Conclusion...................1873

I. Introduction

John Doe was beginning his senior year when his University received three anonymous complaints filed against him by Janes 1, 2, and 3.1 Jane 1 described the night John offered to walk her home from the bar. She was heavily intoxicated from a party, but John followed her into her dorm room and proceeded to digitally penetrate her. Jane 2 told the University of an evening where John was touching, kissing, and trying to force himself on her despite her extreme intoxication and visible discomfort. Jane 3 recounted a night that John followed her into a bathroom and began touching her and exposing himself to her until she ran away.

The University conducted an investigation into the complaints and held three hearings. John claimed little memory of the evenings, and the hearing panel found his testimony unpersuasive. The University ultimately found John responsible for the sexual misconduct and expelled him. In response, John sued his University and its officials, claiming, among other things, that the University proceedings were tainted with gender bias against him. John explained that the federal government's pressure on the University to address sexual assault issues, combined with student activism to raise awareness about campus sexual assault, influenced his University to find him guilty-all because he is a male and the victim of reverse gender discrimination.2

The conversation surrounding sexual discrimination, sexual harassment, and sexual misconduct in general has undergone a drastic transformation over the past few years.3 The volume of public discussion regarding sexual assault on college campuses, in particular, has significantly increased in recent years.4 The federal government,5 university students,6 and the public at large7 have begun to put pressure on universities to change their policies surrounding sexual assault allegations. Many universities have taken procedural and substantive efforts to address the issue of campus sexual misconduct.8

Although there are vocal supporters of the policy changes, there are also many who oppose such measures.9 Many universities that have made efforts to improve and strengthen their sexual assault disciplinary processes have faced backlash for such measures.10 Some opponents view the campus disciplinary process as unfair to the accused students.11 Another criticism of the university disciplinary model generally is that the issues should not be handled administratively but rather processed through the criminal justice system.12 These critics often emphasize the seriousness of the allegations being made against accused students. …

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