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The University of Denver campus is seen on Tuesday, June 15, 2021. (Olivia Sun, The Colorado Sun)

A federal appeals court has given new life to a lawsuit filed by an undergraduate student who argues he was expelled from the University of Denver because of anti-male bias in the investigation of a sexual assault allegation against him.

The 10th Circuit Court of Appeals decision Tuesday sends the case back to Colorado’s federal district court, which originally rejected the legal action, for further consideration. The lawsuit was filed by the student anonymously under the pseudonym John Doe.

“Viewing the evidence in the light most favorable to John, we are satisfied that a reasonable jury could find that John’s sex was a motivating factor in the university’s decision to expel him,” three judges on the 10th Circuit Court of Appeals wrote in a 30-page ruling written by Chief Judge Timothy Tymkovich, appointed to the bench by President George W. Bush.

The other judges who heard the case were Senior Judge Bobby R. Baldock, an appointee of President Ronald Reagan, and Judge Gregory A. Phillips, an appointee of President Barack Obama.  

“He is very happy to have his day in court,” said Stuart Bernstein, one of John Doe’s attorneys from the New York-based law firm Nesenoff & Miltenberg.

The University of Denver declined to comment on the ruling.

“The University of Denver does not comment about active litigation,” a spokesperson for the school said in a written statement. “It is important to note that the appellate court has not made a ruling on the merits of the case, but rather the previous ruling by the trial court.”

The lawsuit was first filed in U.S. District Court in Denver in November 2017. Bernstein declined to provide biographical information on his client. 

MORE: Read the ruling here.

According to the court’s summary of the case, John Doe was “romantically involved” with a fellow first-year student in early 2016, though they never had sex. One Friday night, when both students were intoxicated, the woman led John Doe to her dorm room. John became sick and passed out on the floor. 

The next morning, the two had sex. John Doe claimed that the woman, identified as Jane Roe, “did not ask why he was putting on a condom or try to resist” and that she “was positioned on top of him” before abruptly getting up and leaving the room, the documents say. Jane Roe said that she was still pretty drunk and though she did not resist, she “felt she could not leave the room” and that John Doe grabbed her leg when she moved it.

“When she returned, John was still in her room,” the documents say. “Jane said the two argued about what had happened, and John eventually left.”

The University of Denver campus is seen on Tuesday, June 15, 2021. (Olivia Sun, The Colorado Sun)

A few days later, Jane Roe had a Sexual Assault Nurse Examiner’s report done, but did not file a claim with the university until about three weeks later in late March 2016. 

John Doe claimed that the university didn’t interview all of the witnesses he provided to the school’s investigators and that his psychologist, who was interviewed, felt the university’s summary of her statement was inaccurate and that when she was interviewed, the investigator appeared to have already made up their mind about what took place.

John Doe’s lawsuit claimed that he was discriminated against on the basis of sex, and that his due-process rights and Title IX rights prohibiting educational discrimination on the basis of sex were violated. He also claimed that the school was in breach of contract, breach of the covenant of good faith and fair dealing, and negligence.

It’s very rare for Title IX complaints to be brought by men. 

John Doe’s lawsuit was initially rejected by the federal court, the documents say, because he “had failed to present sufficient evidence that the university’s actions were motivated by bias against him because of his sex, and it therefore granted summary judgment to the university.”

“John claims the university’s sexual-assault investigation against him was tainted by anti-male bias to such a degree that it is reasonable to infer sex was a motivating factor in the university’s expulsion decision,” the appellate court decision said. “The district court, in contrast, concluded the university’s policies and actions were, at most, pro-sexual-assault complainant, rather than pro-female, and anti-sexual-assault respondent, rather than anti-male.”

The 10th Circuit court disagreed with the district court, finding John Doe “provided sufficient evidence for a jury to decide whether the investigation into the allegations and subsequent disciplinary action discriminated against him because of his sex.” 

The court noted that it and other courts have declined to infer anti-male bias from disparities in the gender makeup of sexual-assault complaints. But the judges wrote that John Doe raised statistical anomalies in how the university investigates sexual assault complaints “that raise at least a fair inference of anti-male bias.”

According to the court’s opinion, John Doe highlighted how University of Denver didn’t formally investigate any of the 21 sexual-misconduct complaints brought by men from 2016 to 2018, while it formally investigated 14 of the 105 complaints brought by women during the same period.

“We realize we are dealing with very small sample sizes, but this merely reflects the reality that sexual-misconduct claims in higher education overwhelmingly involve a female complainant and a male respondent,” the opinion said.

Jesse Paul is a Denver-based political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is the author of The Unaffiliated newsletter and also occasionally fills in on breaking news coverage....