Due Process

Purdue Student Expelled for Alleged Sexual Abuse Can Proceed With His Due Process and Sex Discrimination Claims

"Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights."

|The Volokh Conspiracy |

From Friday's Seventh Circuit decision in Doe v. Purdue Univ., written by Judge Amy Coney Barrett and joined by Judges Diane Sykes and Amy St. Eve:

After finding John Doe guilty of sexual violence against Jane Doe, Purdue University suspended him for an academic year and imposed conditions on his readmission. As a result of that decision, John was expelled from the Navy ROTC program, which terminated both his ROTC scholarship and plan to pursue a career in the Navy…. [We conclude that] John has adequately alleged violations of both the Fourteenth Amendment and Title IX.

The court concluded that, under Indiana law, university students have no property right in their continuing attendance at the university, and thus they can't sue for deprivation of property without due process. (Federal courts disagree on this question: "The First, Sixth, and Tenth Circuits have recognized a generalized property interest in higher education. The Fifth and Eighth Circuits have assumed without deciding that such a property interest exists. The Second, Third, Fourth, Ninth, and Eleventh Circuits join [the Seventh Circuit] in making a state-specific inquiry to determine whether a property interest exists.")

But the court held that Doe adequately alleged that he was being deprived of his liberty, on a so-called "stigma plus" theory: Purdue had been accusing him of a crime, and combining the stigma of this accusation with a one-year suspension, which led to his expulsion from the Navy ROTC program. (Mere alleged defamatory falsehoods aren't seen as deprivations of liberty for Due Process Clause purposes, but alleged defamatory falsehoods coupled with tangible government action often are.) And, the court concluded, this deprivation of liberty was done without due process:

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." 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. "[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights…."

John has adequately alleged that the process was deficient in other respects as well. To satisfy the Due Process Clause, "a hearing must be a real one, not a sham or pretense." At John's meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence.

And in a case that boiled down to a "he said/she said," it is particularly concerning that [Dean of Students Katherine] Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement. It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane's credibility.

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. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt. His roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane's rendition of events was false. And John insisted that Jane's behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her. 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.

The court allowed the Title IX sex discrimination to go forward as well:

[John has alleged facts, that], raise a plausible inference that the university discriminated against John "on the basis of sex[,]" … the strongest one being that Sermersheim chose to credit Jane's account without hearing directly from her.

The case against him boiled down to a "he said/she said"— Purdue had to decide whether to believe John or Jane. Sermersheim's explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words to the Advisory Committee. Her side of the story was relayed in a letter submitted by [Monica Soto] Bloom, a Title IX coordinator and the director of CARE [the Center for Advocacy, Response, and Education, a university center dedicated to supporting victims of sexual violence].

For their part, the three panelists on Purdue's Advisory Committee on Equity were similarly biased in favor of Jane and against John. As John tells it—and again, we must accept his account as true—the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account.

They made up their minds without reading the investigative report and before even talking to John. They refused to hear from John's witnesses, including his male roommate who maintained that he was in the room at the time of the alleged assault and that Jane's rendition of events was false. And the panel members' hostility toward John from the start of the brief meeting despite their lack of familiarity with the details of the case—including Jane's depression, suicide attempt, and anger at John for reporting the attempt—further supports the conclusion that Jane's allegation was all they needed to hear to make their decision.

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." Construing reasonable inferences in John's favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault. And it is pertinent here that Bloom, CARE's director, wrote the letter regarding Jane to which Sermersheim apparently gave significant weight.

Taken together, John's allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex. To be sure, John may face problems of proof, and the factfinder might not buy the inferences that he's selling. But his claim should have made it past the pleading stage, so we reverse the magistrate judge's premature dismissal of it….

Thanks to Howard Bashman (How Appealing) for the pointer.

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  1. university students have no property right in their continuing attendance at the university, and thus they can’t sue for deprivation of property without due process

    Perhaps one of the most difficult legal issues with these cases is the fact that state-sponsored universities are sometimes treated as private actors and sometimes treated as government actors.

    I’m not sure there’s an easy and workable solution to this issue.

    1. jubulent: Interesting — can you elaborate, at least as to state-run universities? (A private university may be “state-sponsored” in the sense that it gets lots of government grants, but that doesn’t make it public.) I’ve generally not seen public universities treated as private actors; and they’re not being so treated here. Rather, the court is saying that, under Indiana law, enrollment in a university (like employment in an untenured, at-will government job) isn’t a property interest for Due Process Clause purposes.

      1. The case treated Purdue as a public university for all purposes. One of the points in the opinion is that Indiana doesn’t give its residents a right to a university education, and the plaintiff’s lawyer didn’t point to any specific contractual provision indicating a right to continued study there, so the plaintiff couldn’t show he had any property interest involved.

      2. State-run universities claim the right to determine who is able to be a student, the right to exclude people from the property that they object to, and (as you stated) there’s no recognized property interest to a university education (once you’re accepted).

        Compare this against a public elementary school where there is a property interest in obtaining an education (see, e.g. Brown). This means the school cannot determine who is a student (unless there’s a discipline issue), and they generally cannot exclude members of the public from the grounds (not classrooms).

      3. I’m curious. You state “like employment in an untenured, at-will government job” however the one major difference between enrollment and a job is that one is paying for a service while the other is being paid for a service; hence the property right.

  2. All female panel.

    1. A significant point in the PR sequelae. The reaction of Oberlin in the wake of their significant recent loss has been to a) attack the jury and b) flat out lie [claiming they were being held liable for the actions of their students]. This unanimous slap-down by an panel of all female federal judges is going to hurt them now, and possibly at trial.

      1. Ideally, the jury would ignore (or not know about) the sex composition of the court which ordered the trial – all the appeals panel seems to have done is say there’s a case to go to a jury, leaving it to the jury itself to rule on the facts one way or the other.

        I wonder if they’re storing this up to use against Barrett – “she ruled in favor of a rape suspect, betraying her own sex, probably at the instruction of her husband (like women who voted for Trump).”

  3. I hope the jury goes all Oberlin on them.

  4. Really regretting that we have Kavanaugh and not ACB right now…

    1. There’s still hope she’ll get the next nomination.

  5. Universities really need to do a better job on this kind of case. What happens now is ridiculous.

    1. Encourage students who claim they’ve been raped to go to the police?

      The real-world justice system has some serious problems (eg, the plea-bargaining system), but in the final analysis you can demand that the authorities prove their case to a jury of more or less non-insane fellow citizens.

      1. That’s one thing, though if they don’t want to it shouldn’t end matters.

        My main point is that university disciplinary procedures need to be designed with an eye to fairness, due process, etc. Ideology has no place there.

        1. The fundamental problem in university internal investigations is that there isn’t anyone dedicated to demonstrating the accused’s innocence. It’s a system with guaranteed prosecutors but no guaranteed defense. Oftentimes they don’t even permit a defense. I don’t think there’s any fixing it until communities scrutinize their universities.

          1. The fundamental problem is that Universities aren’t police forces, and they’re not judicial systems, and they have no idea how to perform either of these functions. The taxpayers are, however, paying for an actual police force, and an actual judicial system, we should use these to prosecute serious crimes like rape instead of leaving it to the manifestly unfit title IX apparatus.

        2. Certainly, though I think they’re more likely to avoid ideological prosecutions in cheating cases, and cases of low-level offenses like petty vandalism (as long as there’s no political component to the vandalism).

          Sex crimes seem to attract university ideologists like moths to a flame. There’s the push/pull factor of some administrators perhaps being committed ideologues, while from the outside the feds, the courts, and the activists are pressing for more procedures that are pro-complainant.

        3. There’s really no reason that the universities should HAVE “disciplinary procedures” for any offense that’s actually a crime in the outside world. It’s redundant. I can’t think of any other business that tries to run a parallel court system.

          Basically at this point the universities are running parallel court systems specifically so that they CAN violate the rights accorded defendants in the real court system, because they’re ideologically opposed to concepts like the presumption of innocence.

          1. Basically at this point the universities are running parallel court systems specifically so that they CAN violate the rights accorded defendants in the real court system, because they’re ideologically opposed to concepts like the presumption of innocence.

            And they’re doing so because the government is mandating it do so, of something it is forbidden from doing directly.

            1. The government stopped mandating kangaroo courts two years ago. University administrations that still have them can be presumed to _want_ them.

          2. There’s really no reason that the universities should HAVE “disciplinary procedures” for any offense that’s actually a crime in the outside world.

            I don’t think it’s unreasonable for them to have those procedures. First, suspension or even expulsion, is not a criminal penalty. It’s more like a civil penalty, and the school has a legitimate interest in kicking bad actors out. A university is a certain type of close community, after all.

            Second, there are things that might be crimes that won’t be prosecuted. Not every fight is going to be investigated by the police and the DA, and even if it is there may well be reasons for there being no prosecution.

            I can’t think of any other business that tries to run a parallel court system.

            I’m not sure that’s a great comparison, but I will note that “employment at will” doesn’t exactly provide a presumption of innocence, and even where that is not the rule, it doesn’t generally require a criminal offense to justify firing someone.

          3. I can’t think of any other business that tries to run a parallel court system.

            That’s because just about every other kind of business can decide unilaterally who it chooses to deal with as a customer, without any due process whatsoever (except, of course, if their refusal to deal constitutes discrimination on a forbidden ground, such as race or sex). In the case of serious allegations, they don’t wait for the police or courts to act; they just ban people for life from coming onto the property. Do you really want schools to have the same power?

        4. These policies were put in place due to ideology. Specifically the Obama Administration’s “Dear Colleague” letter in 2011 played a key role, demanding Universities make Title IX investigations. It dropped the standard of evidence to “Preponderance of the evidence”.

          1. Isn’t that the standard in a civil case?

            1. It is and yet Purdue didn’t even meet that.

            2. Yes and no.

              There are generally two types of standards in civil cases. Preponderance of the evidence and clear and convincing evidence. Preponderance is used in most civil cases, especially those concerning “just” monetary damages between two equal parties. Clear and Convincing is used for items of greater import, typically involving civil liberties (including revocation of parental rights), fraud, and so on. For example, revocation of professional licenses (IE, licenses to practice medicine) typically require a clear and convincing evidence level. Often, cases which involve this standard involve an agency of the government, or another organization which has a degree of authority over the defendant. (IE, the IRS in fraud cases).

              Now, before the Obama administration’s letter, universities differed in which standard (preponderance or clear and convincing) to apply. It’s not just fiscal damages that result, but items, including removal from the campus, that change the defendant’s life substantially, if he or she is found guilty.

              Preponderance is a pretty weak standard, especially in what’s often a he said/she said type of situation. It’s further weakened by the prosecution being an agency which has a degree of authority over the defendant. And the results are more severe than fiscal damages.

              1. Not to mention that fact that civil courts have plenty of other procedures baked in, like discovery, jury trial, etc.

          2. It doesn’t matter what the standard of evidence is when one side is believed without actually presenting evidence, and the other side is not allowed to present evidence.

      2. While I agree that the system currently in place in many universities is deeply flawed and unfair to the accused, I don’t agree that the only resort should be to the criminal justice system.
        Take an analogy: police misconduct. That can be prosecuted criminally in egregious cases, but of course you need a full jury trial and proof beyond a reasonable doubt.
        But police departments also have internal investigations, where the burden of proof is less, and the proceedings less formal, although there is still legal representation and due process. And the scope of conduct that can be disciplined is wider.
        And there is a good reason for that. A cop who is probably dirty or probably incompetent should not remain a cop, even if there is reasonable doubt about whether he acted wrongly. The standards for keeping on a cop in the department, with all the authority and potential for abuse that comes with it, is not the same as the standard for sending him to jail.
        And, apart from the standard of proof, there is a lot of misconduct that should be grounds for discipline and even removal, but not grounds for criminal punishment. (A cop who is repeatedly careless with his service revolver and endangers bystanders comes to mind.)
        The same applies on campus. Let’s say, after a fair hearing, we decide it is 75% probable that John Doe Student raped Jane Roe Studebt. Not enough to send him to jail. Enough to remove him from campus and keep him from doing it again to another student. In fact, the failure to remove him is likely gross negligence.
        Or, let’s say, John Doe Student has repeatedly touched woman on their private areas, even after being asked not to, and after being warned not to repeat it. A basis for jail? No. Removal from campus? Yes.
        So there needs to be a fair system that allows for legal representation and full exploration of the evidence. Police disciplinary proceedings are a good model for that.

  6. You might think that at a certain point, these people of supposed high intellect would apply some of it to just acting on the most basic tenets of logic, fairness and common sense.

    JK, this is the higher ed world. There’s likely a fair number of middle-schoolers who could figure out why this process was wrong-headed on its face. Not these folks though. It’s just further evidence that living in a bubble makes you stupid.

    1. “these people of supposed high intellect ”

      This is not the first such federal decision. The odd thing here is that it was a circuit court. Most times the colleges are losing at the trail court level.

      Having a hearing officer from a separate college office, having a right to counsel with the right to call and cross examine witnesses would make these cases largely go away.

      I imagine the Boards of Trustees will have enough shortly at most schools. Though the Oberlin reaction is not promising.

  7. “Some people regard rape as so heinous an offense that they would not even regard innocence as a defense.”

    1. Potiphar’s wife is unavailable for comment at this time, but I suspect she would agree.

  8. The opinion said the plaintiff could modify his complaint on remand.

    I might consider adding more aggressive allegations in order to overcome qualified immunity. For example, the plaintiff alleges that the investigative report not only omitted obvious exculpatory information, it flat-out made up incriminating information. It said that plaintiff had confessed.

    In addition, I would allege stronger inferences from the fact that two of the committee members hadn’t bothered to read the investigative report.

    Even as it stands, the 5th Circuit’s qualified immunity analysis comes close to a license to violate the constitution, however egregiously, so long as one can come up with some novel aspect. There has been no court case specifically holding, for example, that public university officials (as distinct from police) can’t participate in a lynching. Until there is such a case, the 5th Circuit decision appears to give public university officials who want to lynch someone some comfort that if they do so they’ll be found immune.

    You would think that the unconstitutionality of a kangaroo proceeding where officials didn’t so much as bother to look at even a report of the evidence, and found someone credible when they hadn’t so much as seen a written statement from her let alone heard her in person, would have been clearly established even without a decision specifically covering this particular kind of proceeding.

    1. Frankly shocking.

    2. I would suggest alleging that the people who wrote the investigative report claiming a confession fabricated evidence. I would claim conduct whose unconstitutionality would be more clearly established. I wouldn’t play nice.

    3. “Until there is such a case, the 5th Circuit decision appears to give public university officials who want to lynch someone some comfort that if they do so they’ll be found immune.”

      It’s worse than that. They won’t establish that a right was violated on the first case, or the second case, or the third. They might get around to establishing that university officials aren’t allowed to lynch students some time around the 20th case.

  9. This is what often happens to a guy who acts as “Captain Save a Ho.” He tried to help this woman, who has a mental illness, try to keep her life together, indeed to help her keep her very life. He should have walked away. Chivalry is dead, folks.

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