A Federal Court Takes on Title IX

Since the Obama-era Dear Colleague letter, there have been almost 500 lawsuits filed at the state or federal level by accused students. One of the most unfair—in the combination of procedures and outcome—occurred at Purdue University. A lawsuit filed in January 2017 was revived last month by an important opinion issued by the Seventh Circuit. Given its significance, the case is worth a full review.

The Incident

In the fall 2015 semester, a male student that court papers identified as John Doe entered into a sexual relationship with a female student at Purdue University. Doe was attending Purdue on an ROTC scholarship and planned a career in the Navy. The sexual relationship ended in December 2015, when the female student attempted to kill herself, and Doe reported the suicide attempt to Purdue officials.

The following April, the accuser told Purdue’s victim rights office, CARE, that one of the more than a dozen instances in which she’d been with Doe had been non-consensual. A CARE official prepared a statement on her behalf; words written by the accuser were never part of the Purdue case file. CARE itself was hardly a due process champion on campus; on its Facebook page, the office had posted an article claiming that men are responsible for sexual assault, not alcohol.

The CARE statement was forwarded to Purdue dean Katherine Sermersheim, who oversaw an “investigation.” Two investigators spoke with Doe—but never spoke with the accuser. Nor, for reasons Purdue never explained, did they interview Doe’s roommate who Doe said would back up his version of events


The investigators produced a report for Sermersheim, even though, again, they had never interviewed the accuser. Incredibly, Purdue refused to share the report with Doe. A “meeting” with a three-person panel to discuss the report then took place. The accuser did not appear. After the panel meeting, Sermersheim found Doe guilty. He appealed; the dean denied the appeal, opining, “I find by a preponderance of the evidence that [the accuser] is a credible witness.”

Sermersheim reached her credibility decision without ever speaking to the accuser or reading even one word that the accuser herself had written.

Doe was suspended and lost his ROTC position as a result. To reiterate: this was a process in which Sermersheim based her credibility decision on the hearing panel’s judgment; the panel deemed the accuser credible based on the two investigators’ judgment, and the two investigators based their credibility decision on a statement that the accuser herself hadn’t written.

The District Court

Doe filed a lawsuit. He had bad luck to draw Magistrate Judge Paul Cherry, who sided with Purdue on all counts in a November 2017 ruling. Under existing Seventh Circuit precedent, Cherry maintained, Doe didn’t even have the standing to bring a due process complaint against Purdue. He didn’t explore in any detail how Purdue’s action led to Doe’s losing his ROTC scholarship.

The opinion’s Title IX section provided a sense of why Cherry offered such an unimaginative take on the due process stakes in the case. Its passages featured a veritable whos-who of the most university-friendly opinions in the post-Dear Colleague letter era. Cherry cited Doe v. Baum, which the Sixth Circuit would eventually reverse. He included a long quote from Doe v. Regents without recognizing that the district court, in that case, had reconsidered its university-friendly opinion, and the rhetoric Cherry added was no longer good law.

Cherry repeatedly cited to the district court’s university-friendly opinion in Doe v. Columbia, which by this point had been reversed by the Second Circuit more than a year before. No matter to Cherry—he indicated that the district court’s overturned opinion was “more persuasive.”

In a process in which the accuser’s statement was written by the victims’ rights office, and in which that same office had posted an article saying that “men” are responsible for sexual assault, Cherry ruled that Doe “failed to allege facts to create a plausible inference that gender bias caused the alleged erroneous outcome.”

The Appeal

Doe appealed. He drew an all-female panel in the Seventh Circuit—Amy Coney Barrett, Diane Sykes, and Amy St. Eve. Two exchanges captured Purdue’s difficulty. The first, between Judge Barrett and Purdue’s lawyer, William Kealey, centered on the due process implications of procedures in which the accuser never even produced a statement, much less appeared before a hearing.

The second, between Barrett, Kealey, and Judge Sykes, exposed the improper pleading standard that Magistrate Judge Cherry had applied in his ruling.

It took more than nine months for the court to issue its ruling, written by Judge Barrett. It sided with Doe on both due process and Title IX counts. The due process section particularly focused on the myriad flaws in Purdue’s accumulation and use of evidence. A Title IX adjudication, Barrett wrote, demanded “relatively formal procedures,” and yet “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” The refusal to share with Doe the investigator’s report, according to Barrett, “was itself sufficient to render the process fundamentally unfair.”

The hearing Purdue provided was little more than a “sham.” To Barrett, “it is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane’s credibility,” given that they never heard from her. The conduct was even more “puzzling” given that Doe’s “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.”

This section was a devastating rebuke to Purdue’s procedures. And Barrett’s focus on the relationship between due process and evidence—withholding key evidence, failing to pursue exculpatory evidence—was perhaps the clearest of any of the due process rulings since 2011.

The section on Title IX, meanwhile, has the potential to be revolutionary. Until now, courts have considered accused students’ Title IX claims through the precedent laid down in Yusuf v. Vassar College. The most common Yusuf category, erroneous outcome, requires accused students to cast some doubt first on the outcome of their case; and then to produce plausible evidence that gender-based discrimination caused that outcome. In some instances, such as Magistrate Judge Cherry’s opinion, these twin requirements presented a false distinction—evidence suggesting that accused student’s innocence couldn’t really count to demonstrate gender bias.

Barrett saw through this problem, and instead introduced a new standard for (at least) the Seventh Circuit: “We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John ‘on the basis of sex’?” This question allows for a more holistic analysis of the case and likely will be more plaintiff-friendly than the Yusuf test.

Under this standard, Purdue came up well short. Outside pressure from the Dear Colleague letter and an OCR investigation of Purdue. The “strongest” plausible evidence of gender discrimination Doe offered, according to Barrett, was “that Sermersheim chose to credit Jane’s account without hearing directly from her.” The CARE Facebook post also bolstered Doe’s claim of gender bias.

So, Doe won—and obtained one of the two most significant due process rulings since the Dear Colleague letter was issued in 2011. And he’s likely to prevail at summary judgment, at least on the due process count, if Purdue doesn’t settle first. But consider what Purdue’s unfair process has already cost him: three years of his life (and counting) and his ROTC position.

Purdue continues to use the same basic procedure that generated the unfair outcome in Doe’s case.

Read more at: https://www.mindingthecampus.org/2019/07/24/a-federal-court-takes-on-title-ix/

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