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Appeals court says university is probably ‘railroading’ accused student – yet allows it

Judge cites abstract possibility rather than evidence in front of him

Nearly all sexual misconduct complaints involving two sexes are female accusers and male accused students. It’s undeniable that schools showing bias in favor of accusers are favoring females.

The only group outside of the pro-accuser lobby that has trouble accepting the inherent sex discrimination in pro-accuser policies is federal judges.

The 10th U.S. Circuit Court of Appeals knocked down an expelled student’s Title IX lawsuit against the University of Denver, whose contempt for accused students was already obvious, because “John Doe” can’t show that the university’s transparent bias in favor of accusers is anti-male at its core.

The opinion for the three-judge panel by Judge Monroe McKay, nominated by President Carter, literally said DU’s treatment of the accused male “looks more like a railroading.”

The “accumulation of irregularities all disfavoring [John] becomes deeply troubling because benign, stochastic [randomly determined] explanations for the errors become implausible,” the judge found – and then proceeded to explain it away.

Criminal defense lawyer Scott Greenfield delivers a righteous screed against the ruling at his blog, noting the level of detail Judge McKay provided about the private university’s unfair treatment of John before declaring it irrelevant.

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“[T]here is not only evidence that the school exhibits an anti-respondent [anti-accused] bias generally but also colorable evidence that the school employed that bias in the sexual-misconduct proceeding at issue,” the judge wrote.

Just a few examples: investigators “refused to follow leads that were potentially exculpatory,” ignored the role of the accuser’s boyfriend in initiating the investigation, broke DU’s rules by letting the boyfriend act as her “support person” and “fact witness,” and invited “Jane Roe” to correct her statement while faulting John for doing the same.

Amazingly, investigators deployed two contradictory claims at different points in order to find John guilty. They agreed Jane was “heavily intoxicated” when it meant that John “coerced Jane into sex,” but that she was not when it meant that “Jane’s intoxication had little effect on her ability to accurately recollect the encounter that night.”

“So the male student expelled by University of Denver won? Hardly,” Greenfield writes:

The quote above [“looks like a railroading”] appears in footnote 18, while the opinion is otherwise dedicated to smurfing the six cumulative arguments for why the evidence proved what is beyond clear everywhere but in a courtroom in Denver. …

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In a sense, the evidence demonstrating that this “railroading” is the product of anti-male bias has begun to appear routine, not because it’s insufficient but because the situation happens in essentially every case.

Accused men functionally have no way of demonstrating gender bias to these willfully blind judges because it’s nearly always men who are accused when women are the accusers.

Even as Judge McKay acknowledged how damning John’s allegations were – 35 of 36 accusers were female (and all accused were male) in the five years after the Department of Education’s notorious “Dear Colleague” letter was released – he engaged in “sophist rationalization to explain why each, standing alone,” simply showed pro-accuser bias, Greenfield writes.

This jurist ignores the actual evidence in front of him – how DU acted in direct response to federal threats of defunding from the Obama administration, devised by likely Democratic presidential nominee Joe Biden, if it didn’t tilt its procedures toward accusers – so he could conclude that “both men and women can be potential respondents.”

When confronted with “the totality of the circumstances, the cumulative evidence, the opinions of other circuits, the thousands of rants about how this is a war between vulnerable women and toxic masculinity that has been shouted on every social media platform,” Greenfield intones, “Judge McCay has invoked his judicial right to remain silent.”

MORE: Obama appointed Biden the architect of ‘Dear Colleague’ before election

IMAGE: Minerva Studio/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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