# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued September 16, 2020
Decided November 20, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 20-1165

TREVOR JOHNSON, Plaintiff-Appellant

,

v

.

MARIAN UNIVERSITY, Defendant-Appellee. Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 2:19-cv-388

J .P. Stadtmueller,
J udge

.

O R D E R

This is a Title IX sex discrimination case. Plainti ff Trevor Johnson, a male student at Marian University, met “Jane Roe” du ring their freshman year. Johnson and Roe drank at a party one night in September 2017 , went back to Roe’s room, and had sex. The next morning, Roe could not remember having intercourse.

A year later, Roe accused Johnson of taking advantage of her in her inebriated, blackout state. Johnson claimed the se x was consensual. Marian’s Title IX o ffi cials, NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 20-1165 Page 2

including dean of students Dr. Paul Krik au, investigated Roe’s complaint and found Johnson responsible. Johnson received a two-year suspension from the school.

Johnson sued Marian, claiming it discrimin ated against him because of his sex in concluding he was at fault. The district court granted summary judgment for Marian and Johnson appeals. We review summary judgment de novo , asking whether a genuine dispute exists over any material fact. Kopplin v. Wis. Cent. Ltd. , 914 F.3d 1099, 1102 (7th Cir. 2019).

A Title IX discrimination claim requires pr oof that (1) the educational institution received federal funding, (2) the plainti ff was excluded from participation in or denied

the bene fi ts of an educational program, and (3) th e educational institution in question discriminated against the plainti ff based on gender. Doe v. Columbia Coll. Chicago , 933 F.3d 849, 854 (7th Cir. 2019). The fi rst two elements are not at issue. This case boils down to whether Marian discriminated agains t Johnson “on the basis of his sex.” That

is the test. Id. at 854–55; Doe v. Purdue Univ. , 928 F.3d 652, 667–68 (7th Cir. 2019).

The record does not permit a fi nding of sex discrimination here. Johnson leans on an alleged anti-male, pro-feminist cultur e at Marian fueled by politics and current events. In particular, he cites the Department of Education’s 2011 “Dear Colleague”

le tt er, which pressured universities to prioritize resolving campus sexual assault cases or else lose federal funding. For Marian, th e potential loss of federal funds was more than abstract in light of a recent investigation by the O ffi ce of Civil Rights—a subagency of the Department of Education—into its handling of sexual assault complaints. Johnson also notes Marian’s Title IX trai ning educated administrators on the #MeToo movement’s impacts. And he highlights camp us sexual assault awareness events that featured accounts of mostly female accuse rs. All of this, Johnson claims, conditioned

Marian’s Title IX administrators to favor fe male complainants and discriminate on the

basis of sex.

We have acknowledged this sort of background can be relevant for assessing

Title IX sex discrimination claims. See Columbia Coll. , 933 F.3d at 855 (considering campus events “aimed at raising awareness of sexual assault issues”); Purdue , 928 F.3d at 668–69 (recognizing Dear Colleague le tt er and recent OCR investigations of school as relevant). But a plainti ff cannot rely on such generalized information alone; he must combine it with facts creating an inference that, in his speci fi c case , the institution treated

him di ff erently because of his sex. Columbia Coll. , 933 F.3d at 855 (citing Doe v. Baum , 903 F.3d 575, 586 (6th Cir. 2018)). And although our decisions in Columbia College and PurdueNo. 20-1165 Page 3

examined the issue through the pleadings lens , this requirement does not dissipate at summary judgment.

Johnson tries to prove this connection by referencing statements Dr. Krikau made while conducting Roe’s initial interview. In a few places, Dr. Krikau noted that the events as described by Roe amounted to vi olations of university policy. From these statements, Johnson infers Dr. Krikau jumped to conclusions and determined Johnson’s guilt based on Roe’s fi rst impression and report alone. But even were that an accurate reading of the interview transcript, Dr. Krik au’s statements reveal no sex-based bias. Nothing suggests he believed Roe’s account simply because she was a female; his comments were “divorced from gender.” Columbia Coll. , 933 F.3d at 856. At most, they demonstrate a pro-victim bias, but both women and men can be victims of sexual

assault.

Johnson also points to several posts from Dr. Krikau’s personal Twi tt er account
as evidence of anti-male bias. Around the ti me of Johnson’s investigation, Dr. Krikau endorsed Dr. Christine Blasey Ford as a he ro for accusing now-Justice Kavanaugh of

sexual misconduct. He also defended a woman who complained of having to be selective about reporting harassment. These po sts have no connection to Johnson’s case. They do not call into question Dr. Krik au’s ability to review Roe’s allegations objectively.

These facts do not rise to the level of those alleged in Purdue . In that case, like here, a male college student sued his school for sex discriminati on after being found responsible for a non-consensual sexual enco unter with a female student. We reversed dismissal of plainti ff ’s Title IX claim because he plausibly alleged the school’s adjudicators credited the female accuser over him based on sex. The accuser provided

neither wri tt en nor oral account. Her story was summarized through a le tt er crafted by the director of a campus victim support ce nter—the same organization that, within a month of plainti ff ’s discipline, promoted a Washington Post article titled, “Alcohol isn’t the cause of campus sexual assault. Men are .” 928 F.3d at 669–70 (emphasis added). And two of the three administrators on the disciplinary panel admi tt ed they took no

evidence into account other than the female student’s accusations as described in that

le tt er. Id. at 669. These allegations created an in ference of gender bias. Dr. Krikau’s

interview statements and unrelated social me dia musings, on the other hand, do not.No. 20-1165 Page 4

We often call summary judgment the “put up or shut up” stage of litigation. Siegel v. Shell Oil Co. , 612 F.3d 932, 937 (7th Cir. 2010). But the record here leaves nothing for the jury to decide. Dr. Krikau’s interview statements reveal no gender bias. Nor does his personal social media activity cast doub t on his review of Johnson’s case. Johnson is left with general allegations about the sch ool administration’s perceived anti-male culture. That is not enough to create a triable issue on sex discrimination, so we AFFIRM summary judgment for Marian University.