Say what you will about the Trump Education Department, the fact that it reversed the anti-due process bullying of the Obama administration, which threatened colleges and universities that did not use a presumption of guilt to investigate accusations of campus sexual harassment and assault, was laudable and ethical. Now the Biden administration is in the process of reversing the reversal, as it once again embraces a “believe all women” context for such cases. (Well, “believe all women” except in cases where the Governor of New York and the president of the United States aren’t involved—but that’s another story.)
Fortunately, we have the courts, which are being kept especially busy as the progressives in power try to run roughshod over that damnably inconvenient Constitution thingy. This month the Eighth Circuit Court of Appeals rejected the disingenuous argument by the University of Minnesota that they weren’t stacking the deck against accused male football players due to their gender, but rather tilting the process toward their accusers because the school was biased against all students accused of sexual misconduct. Riiiight, the Court concluded:
“The district court concluded that a university’s bias in favor of the victims of sexual assault does not establish a reasonable inference of bias against male students, citing Doe v. University of St. Thomas, 240 F. Supp. 3d 984, 991 (D. Minn. 2017). While the circumstances here also give rise to a plausible inference of bias in favor of sexual assault victims rather than against males, “[s]ex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed.” Schwake, 967 F.3d at 948; see Columbia Univ., 831 F.3d at 57. Thus, we reverse the district court’s dismissal of the Does’ Title IX discrimination claims.“
Last week the Tenth Circuit came to the same conclusion, ruling that bias against accused students can also constitute bias against a particular gender, particularly since the vast majority of those accused of sexual misconduct on campuses are male. Chief Judge Timothy M. Tymkovich wrote in the court’s opinion,
“While a one-sided investigation, standing alone, might only raise a reasonable inference of anti-complainant bias 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.”
This has been a long time coming. The Obama “Dear Colleague” letter, a power-abusing “Nice little school you have there…be a shame if anything were to happen to it!” extortion missive that fed nicely into the already left-biased proclivities of most institutions of higher education, and encouraged school administrators to wreck the lives of many male students. This was a measure pandering to the large feminist Democratic base, which made its desires known by recasting its accusers of sexual misconduct into “survivors,” which instantly transforms unproven allegations into “truth.” The clever and unconstitutional rationalization was that Title IX ought to be used to force colleges to lean toward punishing the accused, lest a “hostile environment” and “rape culture” be allowed to victimize women. Most of the services and support offered to campus accusers of sexual assault—you know, “survivors”—are provided by campus women’s centers, making the claim that the bias against the accused is gender neutral hard to accept without smirking.
In this Year of The Great Stupid, when the Wonderfully Woke argue that it is just and right to presume police racism without evidence and that the remedy for systemic anti-black racism is systemic anti-white racism, the concept that fairness to female college students requires bias against male college students follows the script. Fortunately, the courts are not woke, but rather waking up.
Pointer: Advice Goddess Blog