Tag: 14th amendment

University Procedure for Sexual Misconduct Allegations Declared Unconstitutional (7th Circuit)

On 28 June 2019, the US Court of Appeals for the 7th Circuit ruled unanimously, in the case of Doe v. Purdue University, No. 17-3565 (7th Cir. 2019), that the procedure used by Purdue University to adjudicate a claim of sexual misconduct violated the student’s rights under the Due Process Clause of the 14th Amendment and that the people involved had displayed signs of discrimination on the basis of sex contrary to Title IX of the Education Amendments of 1972. The judgment of the Court was written by Judge Amy Coney Barrett who is believed to be President Trump’s next nominee for the US Supreme Court in case there is another vacancy on the bench.

In Doe v. Purdue University, No. 17-3565 (7th Cir. 2019), the US Court of Appeals for the 7th Circuit reviewed the magistrate Judge’s decision to dismiss a lawsuit for failing to state a claim. In this mode of review, the Court was obliged to recount the facts as the claimant had described them, drawing every inference in his favor. The Court was not concerned with the question whether the allegations were true but only whether the claimant was entitled to relief if they were in fact true (p2). Consequently, the claimant’s rights under the Due Process Clause and Title IX were violated only if everything he had said were true.

The claimant brought lawsuit against Purdue University after the University had suspended him and imposed conditions on his readmission. This decision was prompted by an accusation of sexual misconduct by a fellow student which was adjudicated by Purdue University according to its internal procedure. Due to the suspension, the claimant was expelled from the Navy ROTC program, preventing him from pursuing a career in the Navy (p1).

Under its internal procedure, Purdue University appointed two investigators to examine the complaint against the claimant. The investigators prepared a report based on the complaint, a written statement submitted by the claimant and an interview with him. When the report was complete, a three-member panel was appointed which was supposed to recommend further actions based on the report and hearing from the parties. The claimant was called to appear before the panel but had not been provided with the report for review. Only moments before the hearing, he was given a redacted version of the report which falsely claimed that he had admitted the wrongdoing. The report also contained other deficiencies. The accuser neither showed up for the hearing, nor submitted any statement (pp4-5).

During the hearing:

“Two members of the panel candidly stated that they had not read the investigative report. The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults. The panel refused John permission to present witnesses, including character witnesses and a roommate who would state that he was present in the room at the time of the alleged assault and that Jane’s rendition of events was false” (p5).

Following the hearing, the claimant was informed that he had been found guilty of sexual misconduct and suspended for one academic year. He appealed to Purdue’s Vice President for Ethics and Compliance but to no avail. In response, he sued seeking injunctive relief under Ex Parte Young, 209 U.S. 123 (1908) to remedy the 14th Amendment violation and for discriminating on the basis of sex contrary to Title IX. The magistrate judge dismissed the constitutional claim, holding that the Due Process Clause did not apply because the disciplinary proceedings had not deprived the claimant of either liberty or property, and the discriminatory claim, holding that the claimant had not alleged facts sufficient to show discrimination on the basis of sex (pp7-8).

The US Court of Appeals for the 7th Circuit first stated that:

“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.” U.S. CONST. amend. XIV, § 1. The threshold question, then, is whether John lost a liberty or property interest when he was found guilty of sexual violence and punished” (p8).

The Court saw no ‘property interest’ in this case. However, it found that:

“John’s failure to establish a property interest does not doom his claim, however, because he also maintains that Purdue deprived him of a protected liberty interest: his freedom to pursue naval service, his occupation of choice. To succeed on this theory, John must satisfy the “stigma plus” test, which requires him to show that the state inflicted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held” (p11).

The ‘stigma plus’ test was satisfied in this case based on the argument that:

“Purdue inflicted reputational harm by wrongfully branding [the claimant] as a sex offender; that Purdue changed his legal status by suspending him, subjecting him to readmission requirements, and causing the loss of his Navy ROTC scholarship; and that these actions impaired his right to occupational liberty by making it virtually impossible for him to seek employment in his field of choice, the Navy” (p12).

Having recognised that Purdue University deprived the claimant of a liberty interest, the Court turned to the question of procedural fairness of the process that resulted in the claimant’s suspension:

“John’s circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss, 419 U.S. at 581. John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair” (pp16-17).

Furthermore:

“Sermersheim and the Advisory Committee’s failure to make any attempt to examine Jane’s credibility is all the more troubling because John identified specific impeachment evidence. […] Sermersheim and the Advisory Committee may have concluded in the end that John’s impeachment evidence did not undercut Jane’s credibility. But their failure to even question Jane or John’s roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John” (p18)

At this point, the Court moved to examine the claim for discrimination under Title IX which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial
assistance” (20 U.S.C. § 1681(a)). The Court immediately accepted that Title IX was applicable because Purdue University received federal funding and the claimant had been excluded from participation in an education program through suspension. The issue was whether there had been discrimination on the basis of sex (p24).

Based on the contents of the complaint, the Court found the following examples of bias against the claimant:

  • “Sermersheim chose to credit Jane’s account without hearing directly from her”;
  • “[Sermersheim’s] basis for believing Jane is perplexing, given that she never talked to Jane”;
  • “the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account”;
  • “[the majority of the panel members] made up their minds without reading the investigative report and before even talking to John”;
  • “[the majority of the panel members] refused to hear from John’s witnesses, including his male roommate who maintained that he was in the room at the time of he alleged assault and that Jane’s rendition of events was false” (pp28-29).

Consequently, according to the Court:

“It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are”.” (p28).

As a result, the Court found that “taken together, John’s allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex.” Given the nature of review, the case was remanded back to the District Court for a full trial (p30).

The case of Doe v. Purdue University, No. 17-3565 (7th Cir. 2019) is significant for at least two reasons. First, it makes clear that Universities cannot use flawed process to punish students accused of sexual misconduct. Given the grave nature of such accusations and possible consequences if the accused is found guilty, Universities must adopt a fair model of proceedings. This ruling comes amid a wider discussion on what such proceedings should look like. In 2017, the Education Secretary Betsy DeVos withdrew old Obama Administration guidance on Title IX, which had been criticised as favouring alleged victims over accuser’s procedural rights, and proposed new rules requiring a fair process for both sides (Inside Higher Ed). Secondly, the case offers an insight into the type of Supreme Court Justice Amy Coney Barrett would be. The ruling in Doe v. Purdue University, No. 17-3565 (7th Cir. 2019) confirms that she is likely to have a traditionally conservative view on many issues, including the frictions between the rights of the accused and of the accuser.

Racial Bias in Jury Selection Punished (SCOTUS)

On 21 June 2019, the US Supreme Court ruled 7-2, in the case of Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), that a persistent use of peremptory challenges to remove black jurors during a series of trials against Curtis Flowers violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The only African-American on the bench, Justice Thomas, dissented.

Curtis Flowers was accused of four murders in a furniture store in Winona, Mississippi in 1996. Altogether, he had six separate jury trials. The first three ended with convictions which were later overturned by the Mississippi Supreme Court on the grounds of prosecutorial misconduct. During these, no African-American sat on the jury despite the fact that the population distribution near Winona was approximately 50% African-American. Next two ended with a mistrial due to hung juries. The sixth trial was held in 2010. During the voir dire procedure proceeding the trial, the prosecution used peremptory challenges to dismiss five African-American jurors, leaving only one African-American on the jury. This trial ended with a conviction and the death sentence. Flowers appealed to the Mississippi Supreme Court arguing that the use of peremptory challenges to dismiss African-American jurors violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The conviction was upheld and Flowers petitioned the US Supreme Court to hear his case.

Peremptory challenges allow attorneys from both sides to dismiss potential jurors during the voir dire procedure proceeding a trial without stating a reason. Usually, both side have a certain number of such strikes which varies form one State to another. Peremptory challenges come on top of challenges for cause which allow attorneys to dismiss any number of jurors suspected of bias. In Batson v. Kentucky, 476 U.S. 79 (1986), the US Supreme Court ruled that the prosecutor could not use peremptory challenges to exclude jurors based solely on their race as this practice violated the Equal Protection Clause of the 14th Amendment.

The Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), written by Justice Kavanaugh, and joined by Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan and Chief Justice Roberts, pointed to “four critical facts, [which] taken together, require reversal“:

“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court… Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.” [pp2-3]

As to the importance of each fact, the Court held that:

“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.”  [p3]

In issuing its verdict, the Court felt that it was not doing anything beyond applying the holding of Batson v. Kentucky, 476 U.S. 79 (1986):

In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” [p3]

The Majority opinion also briefly analysed the historical relationship between the Equal Protection Clause of the 14th Amendment and the right to serve in juries. This included, apart from the 14th Amendment itself, the judgment in the Slaughter-House Cases, 16 Wall. 36, 71 (1873), the Civil Rights Act of 1875 and the judgments in Strauder v. West Virginia, 100 U. S. 303 (1880)Brown v. Board of Education, 347 U. S. 483 (1954) and Swain v. Alabama, 380 U. S. 202 (1965).

Then, the Majority opinion summarised the main principles established by Batson v. Kentucky, 476 U.S. 79 (1986):

“First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination…
Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant…
Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination…
Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out…” [pp13-15]

The Court also listed the types of evidence which could be relied on by the Defendant when bringing a Batson challenge: 

  • “statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
  • evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;
  • side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
  • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;
  • relevant history of the State’s peremptory strikes in past cases; or
  • other relevant circumstances that bear upon the issue of racial discrimination.” [pp16-17]

Based on the history of Flowers’s case and the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the Majority opinion held that the prosecution had not given sufficient race-neutral reasons to justify the exclusion of the five African-American jurors during Flowers’s 6th and final trial. This led the Court to conclude that his rights under the Equal Protection Clause of the 14th Amendment were violated and the conviction had to be reversed.

Interestingly, Justice Thomas, the only African-American on the bench, dissented arguing that the Court “almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [five] black prospective jurors” in Flowers’s final trial [p2]. Justice Thomas claims that the Court “never should have taken this case” because it did not present any real question of law and the Court only wanted to “reconsider the factual findings of the state courts” [p4]. He also points to a bigger picture – the Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), and its effect on Batson v. Kentucky, 476 U.S. 79 (1986), will make it “impossible to exercise a peremptory strike that cannot be challenged by the opposing party, thereby requiring a ‘neutral’ explanation for the strike. But requiring an explanation is inconsistent with the very nature of peremptory strikes.” [p40].

Justice Thomas finishes his Dissenting opinion with his own views on peremptory challenges:

In sum, as other Members of this Court have recognized, Batson charted the course for eliminating peremptory strikes… Although those Justices welcomed the prospect, I do not. The peremptory system ‘has always been held essential to the fairness of trial by jury’.” [p40]

It seems that Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019) was as much about a racial bias in the jury selection as it was about the nature and place of peremptory challenges in today’s criminal justice system.