From Friday's decision by Judge Paula Xinis (D. Md.) in Doe v. Univ. of Md, College Park (for more detail on the factual allegations, see pp. 4-12, and for more on two claims that were dismissed, see pp. 21-23):
In October 2020, University of Maryland student Jane Roe … alleged that John Doe …, the plaintiff here, and another student had sexually assaulted her in separate incidents on the same morning. Following an investigation, the University concluded that Doe was not responsible for any wrongdoing. Nevertheless, Roe and others embarked on a months-long public campaign to brand Doe a rapist and to exclude him from campus activities. Doe now asserts that the University's failure to address this hostile, sex-based campaign violated Title IX….
[T]he persistent pattern of publicly identifying [Doe] as Roe's "rapist" which led to his removal from Club Lacrosse, constitutes harassment directed at his sex. "Sexual harassment" includes "sex-specific language that is aimed to humiliate, ridicule, or intimidate." Plainly, a reasonable juror could conclude that persistent public pronouncements that Doe is a "rapist," a "sexual predator" and "dangerous to girls on campus," is language aimed at his sex and his sexual conduct.
{In determining whether Doe had been harassed based on his sex, a reasonable juror could also consider the source of the comments. The PSA [a student-run organization called Preventing Sexual Assault] was the on-campus support group for female victims of sexual violence perpetrated by male community members. For instance, during the on-campus "Slut Walk," PSA members carried signs stating "Tell men not to rape" and "Pussy grabs back." From this, a reasonable juror could infer that the PSA Presidents' public campaign to brand Doe a "rapist" drew on the same sex-specific framing embodied in PSA's slogans and was consistent with the organization's broader sex-based mission.}
Indeed, such language is no less based on sex than the insults that supported the sexual-harassment claim in Feminist Majority Found. v. Hurley (4th Cir. 2018). There, female members of a women's rights organization opposed the authorization of male-only fraternities. In response, the university's all-male rugby team and their supporters "expressed—in offensive terms—strong criticism" of the plaintiffs. This included a drive-by shout of "Fuck the feminists!," chants glorifying the rape of women; and a barrage of on-campus Yik Yak posts referring to female students as "femicunts, feminazis, cunts, bitches, hoes, and dikes." Even though the misconduct in Hurley consisted entirely of speech celebrating sexual violence against women and name-calling aimed at female promiscuity, neither the district court nor the Fourth Circuit hesitated to conclude that this verbal vitriol constituted "conduct on the basis of sex." See Hurley ("Indeed, the Complaint portrays repeated instances of UMW students targeting and harassing Feminists United members with threats and other sex-based hostility. Those harassing activities were reported to the University on multiple occasions over many months.").
The Court reaches the same conclusion. To hold otherwise would defy logic and common sense in light of Hurley. Harassment based on sex is no more or less actionable when men call women "bitches" and "hoes" than when women brand men "rapists" and "sexual predators." Accordingly, whether the conduct amounts to sex-based harassment remains a question for the jury to decide, and on this record a reasonable juror could so conclude. Indeed, even the University classifies "Non-Consensual Sexual Penetration," i.e., rape, as sex-based "Prohibited Conduct." Because rape is inherently sex-based, persistent and unfounded branding of a man as a "rapist" cannot be easily dismissed as anything other than sex-based harassment.
