The Unfairer Sex

A lawsuit filed by attorney Andrew Miltenberg has recently made national headlines. This Title IX lawsuit relies on a class-action theory to address the grievances of an increasingly visible and numerous class of victims: men in higher education. Hundreds of lawsuits already seek justice on behalf of accused male students in federal courts. Title IX for All, an online archive, currently tracks around 500 such suits, many of which have led to favorable rulings.

There are similar legal challenges pending in California state courts leveled by Mark Hathaway, a specialist attorney, whom one of us, Kursat Christoff Pekgoz, has worked with. There are also Title IX complaints filed with the Department of Education that rely on a similar class-action theory, the earliest dating to April 2016.

Miltenberg is a household name in the Title IX world. He is the counsel who represented a male student who was, we assert, vindicated after being accused by Columbia University graduate Emma Sulkowicz. Sulkowicz, once endorsed by U.S. Senator and Democratic presidential nominee Kirsten Gillibrand, is now discredited, according to multiple commentators.

Miltenberg is a legal pioneer who has won groundbreaking victories before the Second and Seventh Circuit Courts of Appeals. The Second Circuit decision, Doe v. Columbia University, is significant for prohibiting institutions from engaging in discrimination against men even for a short period of time and even in the absence of overt malice. The precedent Miltenberg won before the Seventh Circuit, Doe v. Purdue University, is no less significant because it relies on a “sex stereotyping” theory under which most (if not all) institutions in the nation would fail to comply with Title IX. Specifically, the Seventh Circuit found it intolerable that Purdue University would “blame men as a class for the problem of campus sexual assault.”

Is it a radical notion that most American colleges engage in rampant discrimination against men? Hardly so. The lack of due process in Title IX tribunals has received widespread and bipartisan criticism in recent years from legal and academic experts. Critics include the Federalist Society, the Heritage Foundation, the National Association of Scholars, former California governor Edmund Brown Jr., the NCHERM group, U.S. Supreme Court associate justice Ruth Bader Ginsburg, the American College of Trial Lawyers and others. Various coalition letters have also condemned the unfair application of Title IX to sexual harassment disputes, eliciting hundreds of signatures on multiple occasions.

Much of the criticism has focused on the U.S. Department of Education’s Dear Colleague letter from 2011, which effectively compelled institutions to adopt the lowest standard of evidence (a preponderance) in deciding whether they should expel students, almost always male, accused of sexual misconduct -- while recycling discredited statistics to create a sense of moral panic. A general survey of colleges and their current Title IX practices reveals a grim picture. The overwhelming majority of people accused and sanctioned under Title IX are male, but research has found that men and women experience sexual victimization at nearly equivalent rates, and the majority of male victims report female perpetrators. Meanwhile, the majority of Title IX administrators nationwide are women. In addition, Title IX administrators can also often use biased and unscientific training materials.

While the department’s Dear Colleague letter has now been withdrawn, its legacy is still alive and well on college campuses. Miltenberg’s lawsuit challenges not only the failure of institutions to uphold constitutional due process but also the gender orthodoxy that is responsible for violating these principles in the first place.

Male students who receive sanctions through Title IX often suffer negative consequences that can be as damaging as loss of liberty in today’s world. Further, there is no reason to assume that men are less prone than women to severe emotional distress. Male students often are deprived of the extensive support that women receive from colleges, not to mention that their presumption of innocence is frequently denied. Moreover, male students who experience discrimination rarely find recourse to justice when they complain to the U.S. Department of Education’s Office for Civil Rights. According to our recent research, whenever OCR wrote a resolution letter between 2012 and 2019 to adjudicate adversarial proceedings between female and male parties, they sided with the female 216 times but only nine times with the male.

Class-action lawsuits filed on behalf of women under Title IX have been part and parcel of the legal world for decades. Those lawsuits often involve exorbitant settlements that target institutions but also ultimately punish innocent taxpayers, donors and tuition-paying students. Michigan State University has accepted a settlement for $500 million as a result of the Larry Nassar case. Our institution, the University of Southern California, has agreed to pay out $215 million in response to the George Tyndall case, even though a very similar federal lawsuit challenging USC for its alleged failure to monitor Tyndall has already been dismissed.

Copycat lawsuits are now occurring all over the country against various gynecologists and urologists. These lawsuits demand hundreds of millions of dollars from taxpayers, donors, students and insurance companies. Such exorbitant settlements have incentivized lawyers to muster small armies of victims through online advertisement and “trial by press” tactics. Even if we presume all allegations to be true, these settlements create a new victim class (taxpayers, donors and students) in the name of offering redress to victims of sexual harassment.

In contrast, Miltenberg’s challenge focuses on reasonable remedies, such as expungement of records and modest damages. The Department of Education has recognized the flawed and illegal nature of the 2011 Dear Colleague letter. We hope the courts will now follow suit, because the damage has already been great, and we should expect more lawsuits of this kind in the future.