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15-1536 (L)
John Doe v. Columbia University
 

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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August Term, 2015

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(Argued:

April 12, 2016

Decided:

July 29, 2016)

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Docket Nos. 15-1536 (Lead), 15-1661 (XAP)
-----------------------------------------------------------X
JOHN DOE
Plaintiff-Appellant-Cross-Appellee,
v.
COLUMBIA UNIVERSITY, THE TRUSTEES OF COLUMBIA UNIVERSITY
Defendants-Appellees-Cross-Appellants.
-----------------------------------------------------------X

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Before:

LEVAL, DRONEY, Circuit Judges; KOELTL, District Judge.1

Plaintiff John Doe appeals from a judgment of the United States District
Court for the Southern District of New York (Furman, J.), which granted
Defendant Columbia University’s motion to dismiss Plaintiff’s complaint for
failure to state a sufficient claim. The complaint alleged that Defendant violated
Title IX of the Education Amendments of 1972 and state law by practicing sex bias
in disciplining him for an alleged sexual assault. The complaint meets the low
burden of alleging facts supporting a minimal plausible inference of bias. We
therefore vacate the judgment and remand.
VACATED and REMANDED.

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The Honorable John G. Koeltl of the United States District Court for the Southern
District of New York, sitting by designation.

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15-1536 (L)
John Doe v. Columbia University
 

PHILIP A. BYLER, NESENOFF &
MILTENBERG, LLP, New York, NY,
(Andrew T. Miltenberg, on the brief), for
Plaintiff-Appellant-Cross-Appellee.

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PAUL R.Q. WOLFSON, WILMER
CUTLER PICKERING HALE AND DORR
LLP, Washington, DC, (Bruce M. Berman,
Saurabh Sanghvi, Alan E. Schoenfeld, on
the brief), for Defendants-Appellees-CrossAppellants.

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Leval, Circuit Judge:

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Plaintiff, a Columbia University student who is identified by the pseudonym

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John Doe, appeals from the judgment of the United States District Court for the

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Southern District of New York (Furman, J.), dismissing his amended complaint

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(“the Complaint”) under Fed. R. Civ. P. 12(b)(6) "for failure to state a claim on

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which relief can be granted." The Complaint alleges that Defendant Columbia

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University2 violated Title IX of the Education Amendments of 1972, 20 U.S.C. §

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1681 et seq. (“Title IX”), and state law, by acting with sex bias in investigating

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him and suspending him for an alleged sexual assault. We conclude that the

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Complaint meets the low standard described in Littlejohn v. City of New York, 795
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Although the Trustees of Columbia University are also Defendants in this action, we
generally use “Defendant” hereinafter to refer to Columbia University.
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15-1536 (L)
John Doe v. Columbia University
 

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F.3d 297 (2d Cir. 2015), of alleging facts giving rise to a plausible minimal

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inference of bias sufficient to survive a motion to dismiss, which we hold applies

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in Title IX cases. We therefore VACATE the judgment and REMAND.

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I.

Factual Background

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On a motion under Rule 12(b)(6) to dismiss a complaint for failure to state a

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claim, the only facts to be considered are those alleged in the complaint, and the

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court must accept them, drawing all reasonable inferences in the plaintiff’s favor,

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in deciding whether the complaint alleges sufficient facts to survive. See DiFolco

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v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010). Furthermore, the

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plaintiff is at liberty to plead different theories, even if they are inconsistent with

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one another, and the court must accept each sufficiently pleaded theory at face

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value, without regard to its inconsistency with other parts of the complaint. See

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Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims . . . as it has,

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regardless of consistency.”); Gregory v. Daly, 243 F.3d 687, 701 n.12 (2d Cir.

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2001). Needless to say, the facts a plaintiff alleges in the complaint may turn out to

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be self-serving and untrue. But a court at this stage of our proceeding is not

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engaged in an effort to determine the true facts. The issue is simply whether the

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facts the plaintiff alleges, if true, are plausibly sufficient to state a legal claim. For

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that reason, the court, in judging the sufficiency of the complaint, must accept the
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15-1536 (L)
John Doe v. Columbia University
 

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facts alleged and construe ambiguities in the light most favorable to upholding the

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plaintiff’s claim. If the complaint is found to be sufficient to state a legal claim, the

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opposing party will then have ample opportunity to contest the truth of the

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plaintiff’s allegations and to offer its own version. In light of those rules, we set

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forth below facts alleged in Plaintiff's Complaint in the light most favorable to him,

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drawing reasonable inferences in his favor.

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a. The Sexual Encounter between Plaintiff and Jane Doe

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On the night of May 12, 2013, Plaintiff, a male Columbia freshman who

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upon completing his freshman year became a varsity athlete, was studying for a

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final exam in his residence hall. At approximately 1:00 a.m. a female classmate

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and member of the same circle of friends, identified in this litigation by the

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pseudonym Jane Doe, approached him and initiated a conversation. They took an

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hour-long walk together, and eventually began discussing the topic of “hooking

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up.” The Complaint alleges that, in the interest of privacy for a sexual encounter,

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Jane suggested using the bathroom of her dormitory’s suite. She insisted on using

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her suite rather than his because her ex-boyfriend was Plaintiff’s roommate. She

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told Plaintiff to wait in the bathroom while she went to her bedroom to retrieve a

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condom. She then undressed herself in the bathroom, and they proceeded to have

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15-1536 (L)
John Doe v. Columbia University
 

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sex. Over the next two weeks, Jane contacted Plaintiff twice to express doubts

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about how their friends would react.

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b. Jane Doe’s Complaint and Defendant’s Investigation
After the start of the next school year, on September 24, 2013, Rosalie Siler,

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Defendant’s Assistant Director for Gender-Based and Sexual Misconduct,

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contacted Plaintiff to inform him that a fellow student had made allegations of

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sexual assault against him, and advised him to come in for a meeting. The next

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day, Plaintiff met with Siler, who gave him a formal written notice that he was

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charged with “Non-Consensual Sexual Intercourse” in violation of the school’s

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Gender-Based Misconduct Policies for Students (“GBMPS”), which established

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procedures for responding to allegations of sexual assault on campus. He was told

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that, as a consequence of Jane Doe’s accusation, the University had issued an order

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barring him from contact with her and restricting his access to residence halls on

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campus. Although Plaintiff was advised that he was entitled to access the on-

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campus Counseling & Psychological Services, he was not advised of other sources

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of support during the disciplinary process.

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Plaintiff was summoned to meet on September 25, 2013, with the Columbia

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Title IX investigator, Jilleian Sessions-Stackhouse, who Plaintiff alleges, referring

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to her prior experience, was not gender neutral. In her role as Title IX investigator,
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15-1536 (L)
John Doe v. Columbia University
 

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Sessions-Stackhouse was “charged with creating the narrative account that is

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eventually adopted by the [disciplinary] panel.” A 90. Plaintiff told Sessions-

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Stackhouse that the encounter had been consensual and that there had been

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witnesses at the residence hall lounge that night who could be helpful. The

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Complaint alleges that Sessions-Stackhouse’s response was hostile. She did not ask

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him about the witnesses, interview them, or follow up with them in any way.3

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According to Plaintiff, “[a]t all times, [he] was under the impression that Ms.

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Sessions-Stackhouse would investigate and follow up on [his] account of the

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evening once he conveyed his side of the story; [but] as it turns out, that never

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happened.” A 89.
According to the Complaint, Sessions-Stackhouse’s questioning of Plaintiff

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was akin to cross-examination calculated to elicit a confession. She failed to tell

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him he could submit his own written statement to her or to the disciplinary panel,

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and failed also to advise him that he was entitled to seek the support of a student

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advocate. Nor did she advise him of resources available to him to aid him in the

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process.

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The Complaint later acknowledged that Sessions-Stackhouse interviewed at least one
witness identified by Doe.
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15-1536 (L)
John Doe v. Columbia University
 

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Plaintiff alleges in contrast, upon information and belief, that, in meeting

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with Jane Doe, Sessions-Stackhouse took a narrative account without leading

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questions and without hostility, giving Jane thorough advice as to the resources

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available to her. The interviews conducted by Sessions-Stackhouse were not

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recorded. She took handwritten notes.

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On October 21, 2013, Plaintiff reported to Siler that Jane Doe’s friends had

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harassed and assaulted him on campus. Siler “did not take [his] complaint . . .

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seriously.” A 91-92.

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On October 22, 2013, Plaintiff met with Sessions-Stackhouse to review her

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notes from their previous meeting. He “observed that [her] notes inaccurately and

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inadequately paraphrased [Plaintiff’s] verbal account of the events.” A 92. On

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January 25, 2014, Plaintiff met with Interim Assistant Director, Deputy Title IX

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Coordinator Virginia Ryan (Siler’s replacement) to review Sessions-Stackhouse’s

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report.

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According to the Complaint, the report falsely depicted Plaintiff as having

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inflicted nonconsensual sex on Jane Doe, by virtue of having coercively pressured

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her over a period of weeks to have sex with him.4 The report showed that Sessions-

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While the Complaint does not explicitly allege what Sessions-Stackhouse wrote in her
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15-1536 (L)
John Doe v. Columbia University
 

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Stackhouse had disregarded Plaintiff’s account of Jane Doe’s clearly expressed

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consent, and failed to reconcile Jane’s account with conflicting information

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provided to Sessions-Stackhouse by India Knight, who was a friend of Jane’s,

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about Jane’s motivation on May 12. The report also allegedly failed to include

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statements of persons, including Jane’s roommate, “who had occasion to witness

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Jane Doe in the weeks before” the encounter as well as on that night. A 104-05, 95.

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Plaintiff attempted to correct Sessions-Stackhouse’s mistakes. Ryan gave Plaintiff

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a form to state his response, which he completed and returned on January 29, 2014.

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Soon thereafter, Ryan provided Plaintiff with a hearing date of February 12

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and gave him a list of the panelists. According to Plaintiff, at no point during the

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investigative process did Sessions-Stackhouse, or any administrator, advise him

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that he was entitled to seek advice and counsel from his Dean of Students.

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c. Criticisms of Columbia Among Students and in the Press for
its Previous Lenient Handling of Sexual Assault Complaints
In the period preceding Plaintiff’s disciplinary hearing, Columbia students

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had expressed concern that the University did not take seriously the complaints of

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female students about sexual assaults by male students. Various student
report, it can be fairly inferred that the report took the position that Plaintiff coerced Jane into sex
by weeks of pressure, and that her participation was deemed to be without consent by reason of
the prior pressure.
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15-1536 (L)
John Doe v. Columbia University
 

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organizations had “alleged that the school [was] not being firm enough in the

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disciplinary process” in cases involving accusations by female students of sexual

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misconduct by male students. A 97. This controversy reached the press. On

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December 11, 2013, a New York Post article declared, “Columbia drops ball on

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jock ‘rapist’ probe: students.” Id. The article quoted several female students

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asserting that Columbia had mishandled their sexual assault complaints, failing to

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act with expediency in investigating, giving lenient sanctions, and conveying an

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overall tenor of “dismissal” with regard to the serious nature of the complaints.

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The article stated that the University’s Presidential Advisory Committee on Sexual

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Assault intended to schedule a meeting with the Columbia University Student

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Democrats to learn more directly about student concerns and explore possible next

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steps.

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On campus, the Columbia University Democrats had criticized the

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University’s handling of sexual assault complaints and called for reforms. Sarah

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Weinstein, the Membership Director of that student organization, had written

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opinion articles calling for increased transparency at the school, and had

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spearheaded a petition to request statistics on sanctions issued by Defendant in

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sexual assault cases. Referring to reports that Yale University had given light

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punishments to male students found to have raped or assaulted female students,
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