Last month, the Chicago-based Seventh Circuit Court of Appeals sided with a student who sued his school for unfairly finding him guilty of sexual assault. Reversing a lower court’s dismissal of the anonymous student’s claims against Purdue University, Judge Amy Coney Barrett wrote that it was “plausible” that Purdue’s investigation panel “chose to believe Jane [Doe] because she is a woman and to disbelieve John [Doe] because he is a man.” The court held that the university violated the student’s due process rights and engaged in gender discrimination, forbidden by the Title IX statute.
Since 2011, the federal government has enforced Title IX in cases of campus sexual assault, with nearly 500 accused students having filed similar lawsuits. In John Doe v. Purdue University, the plaintiff relied solely on a statement written on the accuser’s behalf by the campus victims’ rights office. Despite scant evidence, the Title IX investigator deemed the accuser the more credible party—without ever speaking to her. In what Judge Barrett called a “perplexing” decision, Purdue found the accused student guilty of sexual assault after a hearing in which the accuser didn’t even appear. Doe suffered life-altering consequences, losing his ROTC scholarship and his dream of serving in the Navy.
As Barrett noted, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” Purdue’s investigator declined to speak with Doe’s roommate, who he said would corroborate his version of events. The university then withheld the investigator’s report from Doe, a decision that the court labeled “fundamentally unfair.” Indeed, university officials appeared to have rendered their verdict upon hearing the accusation.
The resulting hearing, according to Barrett, lacked the “relatively formal procedures” necessary when universities adjudicate claims of “sexual violence,” as opposed to typical academic misconduct. To Purdue spokesperson Brian Zink, though, Doe received “broad and appropriate protections.” That an institution helmed by one of the nation’s finest university presidents, former Indiana governor Mitch Daniels, deemed “appropriate” a process that a federal appeals court considered a “sham” speaks volumes about fairness in Title IX tribunals.
Only a decision from the Sixth Circuit—rendered last September in John Doe v. David H. Baum et al.—exceeded Barrett’s opinion in importance on this issue. In that case, writing for a unanimous panel, Judge Amul Thapar held that in sexual assault adjudications addressing credibility—as almost all do—the due-process clause requires universities to “give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Such safeguards—considered routine in any other venue—reflect traditional American legal principles for anyone facing serious charges. As the Sixth Circuit noted: “Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life.”
The Seventh Circuit’s opinion echoed critical requirements in Education Secretary Betsy DeVos’s proposed new Title IX regulations: that universities share evidence with both parties, and that campus investigations seek out exculpatory evidence, rather than information that exclusively corroborates the accuser’s account. Fortunately, the new regulations have already incorporated the Sixth Circuit’s recognition that basic fairness requires cross-examination.
Activist groups and their political allies have responded to DeVos by directing their ire toward President Trump. While criticism from Democrats is inevitable in this hyper-partisan era, the nature of their opposition remains surprising. Democratic legislators, for instance, have attacked the principle of permitting cross-examination in campus investigations in terms that suggest that they would also oppose cross-examination in criminal and civil sexual assault trials.
The increasingly aggressive legislative opposition to fair Title IX procedures also accompanies a troubling shift in the judiciary. Before mid-2018, when universities routinely experienced setbacks in these cases, no meaningful statistical difference existed between the outcome of the case and which party’s president had nominated the judge. In fact, Bill Clinton nominees authored the era’s two most important appeals court decisions for accused students, in cases involving Columbia and Miami University.
Since DeVos announced the proposed regulations last November, no noticeable change has occurred with Republican-nominated judges. By contrast, universities have prevailed in 19 of the 26 decisions from Democratic-nominated jurists. This list included two particularly dubious decisions—involving cases at Oberlin College and the University of Arkansas—that appeals courts will hear in the coming year.
With appeals from other accused students currently pending in the First, Third, Eighth, and Tenth Circuits, the Supreme Court could decide whether colleges are constitutionally obligated to give accused students a fair shake in Title IX hearings. That GOP Supreme Court short-listers like Barrett and Thapar penned the two most significant decisions in favor of accused students might suggest that the issue would be as politicized in the high court as it has become elsewhere.
It need not be. After all, in an interview last year with the Atlantic, Justice Ruth Bader Ginsburg commented that “the person who is accused has a right to defend herself or himself . . . There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know.” Previewing the reasoning of Judge Barrett’s Purdue opinion, Ginsburg concluded that “everyone deserves a fair hearing.” Let’s hope that Justice Ginsburg’s reasonable interpretation of the principle of due process gets heard, too.
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