A full year into the Biden administration, one of the darkest pieces of the Trump administration’s legacy remains intact: the Title IX policies set by Education Secretary Betsy DeVos. The policies were established through consultation with militant men’s rights activist groups, who view any amount of process or investigation into a student’s claims of being sexually harmed as not only an egregious attack on their “due process” rights, but an act of violent “anti-male bias.” And the groundwork laid by the former administration has been contributing to a rising tide of increasingly successful “anti-male bias” litigation against Title IX rules.
One database claims that more than 700 Title IX-related lawsuits have been filed since 2013, although it’s not clear how many have been thrown out or privately settled.
Alexandra Brodsky, one of the co-authors of the new paper “A Tale of Two Title IXs: Title IX Reverse Discrimination Law and Its Trans-Substantive Implications for Civil Rights,” told Jezebel she followed lawsuits like this from male students and faculty at universities since she was in law school in 2014 and 2015, and “there’s nothing novel” about the ones we’re seeing today. But Brodsky, who is also a co-founder of the survivor justice legal advocacy group Know Your IX, and author of Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, says it was around 2017 that she began to notice the growing success of “anti-male bias” litigation specifically in circuit courts, which “have allowed several of these students’ reverse-discrimination suits to sidestep the usual barriers that throw traditional civil rights suits out of court.”
Two such cases Brodsky highlights in her paper, co-authored with fellow Know Your IX co-founder Dana Bolger and member Sejal Singh, are Doe v. Purdue University, Doe v. Oberlin College and Doe v. University of the Sciences. The male plaintiffs of these cases are students who were accused of and penalized for sexual misconduct at their schools, and they allege that Title IX policies violated their rights specifically because of their gender. Circuit courts ruled in favor of both plaintiffs.
As Brodsky, Bolger and Singh’s paper notes, “this backward reasoning suggests that civil rights enforcement is a form of discrimination against dominant groups.” Following the logic of this rising trend in Title IX litigation, workplace supports for pregnant people are discrimination against non-pregnant people, and supports for people with disabilities are discrimination against people without disabilities.
Brodsky says their research found that at the heart of these cases was the plaintiffs’ broad equation of accused parties with male identity, despite how students accused of sexual misconduct aren’t always men. Contrary to popular MRA talking points, men are statistically more likely to be victims of sexual harm than falsely accused of it. “People of all genders hurt people of all genders, and I particularly worry about the ways these cases erase male survivors, who are already so often left out of conversations if the assumption is that people being accused of sexual harassment is inherently anti-male,” she said.
Anti-male bias claims once seemed like fringe talking points coming from niche men’s rights groups. But in recent years, particularly amid massive, public backlash to Me Too and certainly among Republican politicians during the 2018 Senate confirmation hearings for Brett Kavanaugh, the idea that even considering claims of sexual misconduct amounts to radical misandrist oppression has become more widely accepted than ever.
It’s not just politicians like former President Donald Trump — accused by dozens of women of sexual misconduct, himself — saying it’s a “very dangerous time for young men” right now, or every Republican senator who claimed Kavanaugh’s life was being ruined by Democratic senators attempting to investigate allegations against him. This idea has also been implicitly and explicitly parroted out by mainstream media: “Does anyone still take both sexual assault and due process seriously?” one 2018 Atlantic article posited, amid the Kavanaugh hearings.
In 2017, author Ijeoma Oluo said USA Today asked her to write a counter op ed to their editorial board on the need for “due process” for men accused of sexual assault, about her supposed opposition to due process. They rescinded the invitation when Oluo made it clear she did, in fact, support due process, she said. The insinuation here was that feminism and survivor justice are inherently at odds with due process — which, FYI, is violated by the government denying someone their rights or a fair trial, not individual people taking sexual misconduct claims seriously.
While Brodsky says it’s not yet clear the extent, if any, that the growing success of litigation against Title IX for “anti-male bias” will impact policymaking, it’s concerning how many of these lawsuits are moving forward. On the cultural level, this advances the dangerous narrative that investigating sexual misconduct allegations is an inherently gendered attack on men, consequently inflicting significant harm on survivors seeking justice.
“As we’re seeing courts applying more generous standards — really uniquely generous standards — to lawsuits brought by students and staff accused of sexual harassment, that stands in contrast with really onerous legal standards that have been applied for students who are survivors,” Brodsky said. “The result could be that schools may look at the case law and say, to minimize our liability, our best bet is to decide that no sexual harassment occurred so we can avoid a lawsuit from the accused student that could likely succeed.”
At the end of last year, the Biden administration announced its plan to roll out new Title IX policies in April. As part of this, it’s expected to reverse Trump era policies that significantly lessened the responsibility of schools and universities to investigate reported sexual misconduct, including narrowing the parameters of sexual harassment to which schools are required to respond, allowing schools to not investigate off-campus sexual assaults, and opening the door for survivors to be cross-examined in-person by their assailants.
Brodsky hopes the Biden Education Department will go beyond reversing Trump era policies influenced by men’s rights groups, and be more proactive to protect fair processes and support student survivors. That means not just returning to a broader definition of sexual harassment that includes assaults that took place off-campus, and returning to previous liability standards that require schools to address complaints in a timely and thorough manner, Brodsky says, but also “more robust protections against retaliation against survivors.”
“Often survivors are the accused students too, facing retaliatory cross complaints from their abusers, or disciplined when they ask their school for help, if they were drinking or doing drugs at the time of their assault,” she explained. In a number of cases, particularly in K-12 schools, students who report being assaulted have been punished for engaging in sexual contact.
In the years since the Obama administration shined greater light on campus sexual assault issues with its Dear Colleague Letter and other guidances for universities to better protect students against sexual violence, we’ve witnessed both the mainstream rise of Me Too, and growing activism to combat racist police violence with decarceration. According to Brodsky, these movements and powerful cultural shifts have amplified demands that anti-carceral survivors and survivor justice advocates have been making for years. “[Survivor justice] movements have always been doing a lot of work to talk about what justice means beyond punishment,” Brodsky said. “I’ve seen organizers increasingly focused on everything that schools can do to help survivors learn and thrive that have nothing, or very little, to do with punishment.
“It can be asking schools to offer survivors counseling, change their schedules so they don’t have to see their harasser in the hallway, or provide tutoring to help a survivor catch up in a class that they missed in the wake of their assault. Title IX is an education civil rights statute — discipline is only one of many parts to realizing that vision.”
The broad cultural recognition of sexual violence exclusively as a criminal rather than civil rights issue, Brodsky says, has long carried harm for survivors, who are often the most likely to be negatively impacted by carceral policies. An estimated 90% of incarcerated women, who are primarily women of color, are survivors of sexual violence, and years of research reveal a clear pipeline from experiencing sexual violence to incarceration, particularly for women and other gender-oppressed people of color.
Men of color, and particularly Black men, are also singled out by carceral policymaking, and when it comes to sexual violence issues, they’re seen as the only people who fit the image of perpetrators of sexual harm. In contrast, middle and upper-class, college-educated, white, male abusers often have the resources, privileges, and presumption of innocence to avoid accountability for committing acts of sexual harm.
Ultimately, contrary to the claims of “anti-male bias” litigation against Title IX policy, Brodsky trusts the administration’s upcoming policy changes can address legitimate concerns that advocates for accused students have about their legal rights at schools, with fairer processes that benefit student survivors, too. “Title IX policy is treated as this zero sum game where anything a school does to help survivors is taken as evidence that they hate men,” Brodsky said, “but this administration can absolutely come up with rules that are really protective of all students’ access to education.”