The Volokh Conspiracy

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Amy Coney Barrett on Due Process in Public University Sexual Misconduct Investigations


I thought I'd repeat a post I wrote up about this case last year, when it was handed down; see also Jacob Sullum's post from yesterday on this subject.

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From Friday's [June 28, 2019] 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….