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).
“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.