“Archaic assumptions” enters our vocabulary….

Title IX case law has given us new terminology that nicely summarizes one of the main purposes of this historic legislation: let’s get away from the “archaic assumptions” many of us grew up with.  You can watch Nick at Night and find those assumptions on full display in 1950s and 1960s TV shows like Father Knows Best and Leave it to Beaver.  You know: men make the money while women keep house.  Girls are not interested in playing sports.  Girls dress and act a certain way, and so do boys, but they are different.  Looking back on the cultural milieu I grew up in, I can see that I was being indoctrinated to believe certain things about how boys and girls, men and women were supposed to be. Title IX blew all that up and invited us to leave behind stereotypes and assumptions that had grown “archaic.”

This came up in a recent 5th Circuit decision, Doe v. Rice University based on the complaint filed by Roe.  You know from those pseudonyms that this case involves sexual activity.  Jane Roe accused John Doe of infecting her with herpes. She filed a complaint with Rice University that ultimately led to Doe’s loss of his full-ride football scholarship. 

Before I tell you how “archaic assumptions” fits in here, I need to tell you what Rice University did not decide. It did not decide that Doe engaged in dating violence. Nor did it conclude that he violated the University’s Sexual Misconduct Policy.  The investigation revealed that the sexual relationship was consensual, and that Doe informed Roe that he had had herpes while in high school. 

So what was the infraction?  Rice found him guilty of “reckless action from which mental or bodily harm could result to another person.”   He was disciplined because he “failed to adequately notify [Roe] of the fact that she was at risk of contracting HSV-1 from him if the two of them engaged in unprotected sex.” The disclosure of his previous sexually transmitted disease was deemed inadequate.  He had to go further to make sure she understood the risks.

In other words, Rice required Doe to “mansplain” the situation to a woman two years older than him, and he thinks this is a reflection of an “archaic assumption” which is not consistent with Title IX.  Here is how Doe put it:

“certainly assuming that an adult female college junior is incapable of understanding the risks of sexual intercourse without the male educating her is part of” the archaic thinking our case law prohibits. 

The 5th Circuit found merit in that argument.  Doe’s suit alleged that he was discriminated against because he is a man in violation of Title IX.  The federal district court found no violation of Title IX here, but a panel of the 5th Circuit reversed that decision by a 2-1 vote. The majority opinion did not say that Rice violated Title IX, but it held that there were fact issues here that need to be resolved and thus it was too soon to dismiss this case.  Among those fact issues is this one:

A rational juror could conclude that to absolve Roe of responsibility for her own risk-assessments—and to place that burden on her male partner—is to act on archaic assumptions in violation of Title IX. 

The dissenting judge carefully avoided endorsing the University’s policy:

But it is not our place to determine whether the University’s policies or the Code of Student Conduct are wise.  Our job is to determine whether the policy was either motivated by gender bias or enforced in a manner that discriminates on the basis of gender in violation of Title IX.  Doe has overwhelmingly failed to show gender discrimination here.

The dissenting judge emphasized that Doe had not created a fact issue about his gender being the motivating factor for the University’s decision.  Doe did not identify any female student who was in the exact same situation and yet treated differently.

Although the three judges on the panel could not agree on the outcome of this case, it’s clear that they would agree with the notion that we need to drop whatever assumptions we have about men and women, boys and girls, that have grown “archaic.”   This has implications for your athletic department, your dress codes, and how teachers and counselors influence students to pursue different goals in life.

It's Doe v. William Marsh Rice University, decided by the 5th Circuit on May 11, 2023.  It’s cited at 2023 WL 3373316.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com