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This Supreme Court Short-Lister Struck A Blow Against Title IX — Here’s How It Happened


Hayden Daniel Associate Editor
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A recent decision by the Seventh Circuit Court of Appeals authored by Amy Coney Barrett could have a major impact on how those accused of sexual assault on college campuses can protect themselves against biased investigations.

Coney Barrett, who was on President Trump’s short-list to replace Justice Anthony Kennedy on the Supreme Court, penned an opinion in June 2019 that struck a significant blow against unfair sexual misconduct investigations on college campuses and affirmed the accused student’s claim that he was discriminated against because of his sex under Title IX.

The application of Title IX in campus sexual assault cases has come under heavy scrutiny from conservatives, including Secretary of Education Betsy DeVos. Criticisms of Title IX’s application include the charge that it creates de facto government regulation of sexual activity that was consensual, that it does not have a clear definition of what constitutes sexual misconduct and that its unclear definition creates a threat to academic freedom and free speech.

Coney Barrett’s opinion established that the investigation conducted by Purdue under the auspices of Title IX violated the accused student’s Title IX rights, throwing the current process of investigating campus sexual misconduct cases into doubt. (RELATED: Student Found Not Guilty Expelled From Yale. He’s Appealing The School’s Decision)

According to the opinion, John Doe, a student at Purdue and a member of the university’s Navy ROTC program, was accused by his ex-girlfriend of inappropriately touching her while she slept. Though John’s ex-girlfriend, referred to as Jane Roe in the opinion, reported this incident of misconduct along with several others to the university, she did not file a formal complaint against John to a Title IX coordinator.

However, John received a letter from Katherine Sermersheim, a Title IX coordinator and Dean of Students, stating that Purdue would move forward with Jane’s allegations and conduct a formal investigation.

During the investigation and subsequent hearing, John Doe was not allowed to view the report of the investigation, Jane Roe was not required to attend the hearing or provide a written statement to the investigation, John was not allowed to present any evidence for his defense and two of the three members of the panel at his hearing openly admitted that they had not even read the report from the investigation.

A week after the hearing, Sermersheim sent John a letter informing him that he had been found guilty and suspended from Purdue for one year.

Purdue University gate Credit: Shutterstock/Ken Wolter

Purdue University gate Credit: Shutterstock/Ken Wolter

John Doe subsequently sued the President of Purdue, the Vice President for Ethics and Compliance, Sermersheim and the two other investigators in his case on the grounds that they had violated his Fourteenth Amendment rights to due process under the law and had discriminated against him on the basis of his sex in violation of Title IX.

The district judge who first heard John Doe’s case dismissed his Fourteenth Amendment violation claim because he had not claimed that the violation of his rights posed any future harm. The judge dismissed John’s Title IX claim because he had not provided enough facts to support his allegation that he was discriminated against on the basis of his sex. (RELATED: Virginia Student Accused Of Sexual Harassment Says School District Treats Men More Harshly Than Women)

In Coney Barrett’s opinion, she agreed with John Doe that “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” but she noted, “The Due Process Clause is not a general fairness guarantee; its protection kicks in only when a state actor deprives someone of ‘life, liberty, or property.’”

The Seventh Circuit determined that John failed to prove that he had been deprived of a property interest, but it did find that Purdue’s investigation deprived John of his occupational liberty.

Coney Barrett argued that Purdue’s verdict deprived John of his occupational liberty and therefore violated his Fourteenth Amendment rights because, “it caused his expulsion from the Navy ROTC program (with the accompanying loss of scholarship) and foreclosed the possibility of his reenrollment in it.”

However, the appeals court agreed with the lower court in its dismissal of John’s claims against individuals involved in the investigation. Coney Barrett cited the doctrine of qualified immunity.

Qualified immunity protects officials from being sued for performing their normal duties unless they violated a “clearly established” law or constitutional right.

The Seventh Circuit determined that “because this is our first case addressing whether university discipline deprives a student of a liberty interest, the relevant legal rule was not ‘clearly established,’ and a reasonable university officer would not have known at the time of John’s proceeding that her actions violated the Fourteenth Amendment.”

Department of Education Building 400 Maryland Avenue shutterstock_1295694679 Credit: Shutterstock/Jer123

Department of Education Building 400 Maryland Avenue shutterstock_1295694679 Credit: Shutterstock/Jer123

Coney Barrett affirmed John’s Title IX claims. John alleged that Purdue had an interest in finding John guilty due to the “Dear Colleague Letter.” The letter, issued by President Barack Obama’s Department of Education in 2011, urged colleges and universities to more vigorously pursue sexual misconduct claims and adopt a “more likely than not” burden of proof in investigations.

Coney Barrett agreed that the “Dear Colleague Letter” may have played a role in the case, noting, “because the Office of Civil Rights — a sub-agency of the Department of Education — had opened two investigations into Purdue during 2016, the pressure on the university to demonstrate compliance was far from abstract. That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue’s compliance.” (RELATED: Betsy DeVos Proposes Title IX Rules, Focuses On Clear Definition Of Sexual Harassment And Due Process Rights)

She continued, “That said, the letter, standing alone, is obviously not enough to get John over the plausibility line,” but also disagreed with the lower court’s finding that John had not adequately shown enough relevant facts to indicate that John’s sex may have influenced the outcome of the investigation.

Coney Barret highlighted the fact that “Sermersheim chose to credit Jane’s account without hearing directly from her,” and “the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account.” Coney Barrett concluded, “taken together, John’s allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex.”

As a result of the facts provided by John Doe in regard to his Fourteenth Amendment and Title IX claims, the Seventh Circuit Court of Appeals reversed and remanded the lower court’s decision.

Samantha Harris of FIRE (Foundation for Individual Rights in Education), which focuses on civil liberties in academia, commented to the Daily Caller that while the ruling was not a game-changing decision regarding the rights of the accused in campus sexual assault cases, it was an important ruling on Title IX.

Harris explained that the decision on the Fourteenth Amendment was not particularly strong, saying, “In the Seventh Circuit they did not find that John Doe had a property interest, so they had to go into a very detailed explanation to prove a Fourteenth Amendment violation,” but she also said that “it was a good ruling on Title IX, especially since it was in a Circuit Court setting.”

The decision was important primarily because of its reach across the entirety of the Seventh Circuit, according to Harris. “This ruling covers several states. Now that it is binding over all states within the Seventh Circuit, it has a much broader reach, and people automatically give more weight to it.”

The Seventh Circuit Court of Appeals holds jurisdiction over the states of Indiana, Illinois and Wisconsin.

Harris did qualify its comments by stating that the opinion of the Seventh Circuit also established qualified immunity for university administrators.

“A Circuit Court case is likely to be very influential given the setting, but they also granted administrators qualified immunity, so it wasn’t as clear-cut a victory as some other court decisions,” Harris concluded.