With the rise of the #MeToo movement1 and high-profile sexual assault cases on college campuses,2 there is increased scrutiny on Title IX procedures.3 Concurrently, more men have started complaining that their conception of masculinity is under attack.4 These arguments of anti-male bias have been made in Title IX cases challenging university procedures where men are the alleged aggressors.5 Recently, in Doe v. William Marsh Rice University,6 the Fifth Circuit found genuine issues of material fact in a male student’s claims of Title IX gender discrimination,7 overturning the district court’s grant of summary judgment for Rice University (the University). By allowing this case to move forward, particularly under the newer “archaic assumptions” framework, the court has helped men weaponize laws that are designed to protect women.
In 2017, Doe began his freshman year at the University on a football scholarship and soon began dating Jane Roe, a junior there.8 Doe had a history of herpes (HSV-1) and chlamydia, which he claimed to have discussed with Roe during their brief relationship, which consisted of multiple consensual, unprotected sexual encounters.9 Soon after the end of the relationship, Roe texted Doe that she believed she contracted herpes from him.10 Roe contacted the University Title IX office about the situation.11 In April, after investigating, the University found Doe had “failed to adequately notify [Roe] of the fact that she was at risk of contracting HSV-1 from [him].”12 Doe subsequently lost his football scholarship, was denied an internal University appeal of the decision, and withdrew from the University.13
In September of 2019, Doe sued the University and its officials for “violat[ing] Title IX by investigating and adjudicating a punishment in a way that was biased against him as a male.”14 He also sued for breach of contract, alleging that the University failed to conduct a fair disciplinary process.15 The district court granted summary judgment to the University on both the Title IX and breach of contract claims.16
Title IX provides a private right of action to plaintiffs who allege “intentional sex discrimination.”17 Circuit courts employ various doctrinal theories to evaluate Title IX claims.18 Doe alleged his Title IX claims under three such theories: erroneous outcome, selective enforcement, and archaic assumptions.19 Still, “[t]he operative question of summary judgment is whether a reasonable jury — presented with the facts alleged — could find that sex was a motivating factor in the University’s disciplinary decision.”20 The district court found that none of these theories presented sufficient factual issues,21 largely because Doe failed to cite to the record to support his assertions.22 The court additionally dismissed the breach of contract claim under Texas state law.23
The Fifth Circuit’s three-judge panel affirmed in part and reversed in part.24 Writing for the panel, Judge Stewart25 found that while the lower court correctly dismissed the breach of contract claim,26 there were material issues of fact under each of Doe’s three Title IX theories.27 Regarding the erroneous outcome claim, the court held that there were triable issues of fact under its two-prong test — “(1) an erroneous outcome and (2) that ‘gender bias was the motivating force behind’ it.”28 The court found whether Roe knew about Doe’s history with herpes before they had sex was disputed — and this was one of Roe’s many “repeated misrepresentations” that the University never held against her.29 The circuit court further held that the district court consistently discounted Doe’s argument of sex discrimination and did not “view the record in the light most favorable to the nonmovant.”30
The Fifth Circuit also found there were material questions of fact under the selective enforcement claim. Selective enforcement requires that, regardless of guilt, “the severity of the penalty and/or the decision to initiate the proceeding was affected by the student’s gender.”31 The court noted that despite Doe’s counterallegations, the University did not investigate Roe for the same conduct as Doe — failing to disclose the risk of sexually transmitted diseases to sexual partners.32 The court found a genuine issue of fact as to whether gender bias motivated the enforcement proceedings, which would constitute selective enforcement.33
The court also allowed the appellant’s archaic assumptions theory to move forward, as it believed the University’s actions could have been “based on overly broad and archaic assumptions about one sex or the other,” as the theory requires.34 Doe claimed that, due to gender stereotypes, the University did not believe Roe should be accountable for her actions — it assumed instead that “an adult female college junior is incapable of understanding the risks of sexual intercourse without the male educating her.”35 Thus, the court found that a rational jury could believe the University’s approach was based on “outdated” and “outmoded”36 ideas about “unwitting female[s],” despite the possibility that Roe was actually more informed about sexually transmitted diseases.37
Judge Graves dissented,38 positing that there was no evidence of gender discrimination by the University under any of Doe’s Title IX theories.39 He disagreed with the majority opinion’s account of the facts,40 noting that while “Doe is free to characterize his claims however he chooses, . . . the ultimate question is always whether there is evidence that the University ‘discriminated against [Doe] on the basis of sex.’”41 He then argued the erroneous outcome,42 selective enforcement,43 and archaic assumptions theories44 each lacked material issues of fact.
Doe v. William Marsh Rice University expanded men’s ability to weaponize Title IX — a federal statute intended to secure gender equality in educational environments45 — against women by expanding the archaic assumptions theory, which has been used only once before in this context, to the Fifth Circuit. This expansion is part of a growing trend of courts becoming dangerously sympathetic to men accused of sexual assault, claiming they are the victims of gender discrimination.46 These cases mischaracterize policies aimed at helping survivors as being unfairly biased against men. College campuses are rife with sexual assault, reporting is unlikely, and culture is biased toward men already. Giving male perpetrators judicial avenues to disincentivize universities from holding them accountable risks increasing the incidence of sexual assault and reinforcing existing male dominance by enhancing impunity. In holding that the case could move forward under a theory that the University acted under archaic assumptions about women, the Fifth Circuit has helped men expand their tools to hamper Title IX investigations, inverting the original gender equity origins of Title IX.
The archaic assumptions theory has only recently been expanded to cases involving alleged anti-male bias in sexual harassment and assault proceedings.47 Before, the theory was applied in the context of student athletes,48 which is still the only other situation in which it has been applied to Title IX claims.49 These prior cases are not particularly helpful in understanding how to apply the theory, as they focus on assumptions about men’s and women’s sports, rather than broader gender dynamics.50 However, in Doe v. Miami University,51 the Sixth Circuit became the first court to recognize the archaic assumptions theory as an avenue to challenge university sexual harassment proceedings.52 It appears that in Rice University, the Fifth Circuit has become the second circuit to expand archaic assumptions to this context — and is the first to conduct such a lengthy analysis.53 As a result, the Fifth Circuit’s discussion of archaic assumptions could make it influential to other circuits considering the theory.
Moreover, the expansion of the archaic assumptions theory contributes to a problematic trend of men alleging Title IX sex-based discrimination in response to sexual assault allegations.54 In Yusuf v. Vassar College,55 the Second Circuit created a legal framework for these lawsuits through the selective enforcement and erroneous outcome theories.56 Since then, a large number of male students have sued schools for unfairness and insufficient processes when evaluating sexual violence cases.57 However, Title IX suits brought by both men and women should be about sex discrimination, not nondiscriminatory process issues.58 If men are granted more avenues to plead these cases as the case law develops, it may become even harder for survivors to obtain relief for sexual harassment or assault on university campuses.
Given how frequently sexual assault claims on university campuses involve men assaulting women,59 it may be hard to distinguish gender-based biases from survivor-based biases if the theory is expanded in this way.60 The conflation of respondent with man, and complainant with woman, means that any man held responsible under a university’s Title IX proceeding will be able to appeal his case in court on these discrimination grounds,61 despite the fact that Title IX’s protections extend only to gender discrimination, not to incorrect results or process issues.62 This may create difficulties for courts trying to distinguish between a process that is biased toward a survivor who happens to be a woman from one that is biased toward a survivor because she is a woman.
However, it is important to acknowledge the reason why these sexual harassment and assault claims do arise more frequently in situations of men assaulting women — men often wield more power than women in sexual relationships, especially in university settings.63 Roughly one in four women on college campuses are sexually assaulted.64 College campuses likely perpetuate rape culture,65 especially when one considers how male students report obtaining sex — through verbal harassment, drugs and alcohol, and force or threatened force.66 And the legal system facilitates these issues by blaming women and expressing sympathy toward male perpetrators.67 Considering how unlikely it is that a perpetrator is held accountable68 and that legal systems do not take into account severe trauma, which may affect survivors’ memories of events,69 it is clear that society and campuses favor men, rather than the converse.70 Universities should be able to prioritize protecting survivors71 by removing perpetrators from campuses, showing sympathy for story inconsistencies that may be the result of trauma, and taking other measures that account for these power dynamics.72 To do so should not be seen as a decision based on archaic assumptions but rather one based on current facts.
Allowing cases like Rice University to move forward will only exacerbate the gender inequity that Title IX was designed to address. Antidiscrimination statutes like Title IX should not be used to “protect dominant groups,” but instead should be grounded in the experiences of the groups they were designed to protect.73 Advocates for gender-based reform on college campuses and those who are concerned with how colleges deal with rape allegations should see Rice University as part of a worrying trend in which men have expanded avenues to retaliate against universities. Ultimately, men hold significant power on university campuses. Courts should not ignore this dynamic when considering how universities proceed with Title IX adjudication.74 As courts continue to allow men to fight these processes, they must ensure that, in the battle against sexual harassment and assault, they do not leave women further behind.