Amy Coney Barrett Emphasized Due Process in Campus Sexual Misconduct Case

Judge Amy Coney Barrett, President Donald Trumps nominee for Supreme Court, poses for a ph

U.S. Supreme Court nominee Judge Amy Coney Barrett led a unanimous all-woman panel of judges in June 2019 in reversing a lower court’s decision to dismiss a male college student’s claims of discrimination because of his gender and failure of his school to protect his right to due process.

In Doe v. Purdue University, Barrett, writing the decision for the three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago, observed that John Doe had “adequately alleged” Purdue University violated his 14th Amendment rights “by using constitutionally flawed procedures to determine his guilt or innocence.”

Barrett also wrote Purdue had violated Title IX, the federal civil rights law passed as part of the Education Amendments of 1972, by “imposing a punishment infected by sex bias.”

As the court summary indicated, Purdue’s “investigators” found John Doe guilty of sexual violence against Jane Doe. The school suspended John for one academic year and said he would have to meet certain conditions if he wished to be readmitted.

Following Purdue’s decision, John was expelled from his Navy ROTC program and lost both his ROTC scholarship to Purdue and his opportunity for a career in the Navy.

According to the summary, John and Jane dated during the fall semester of 2015 and engaged in consensual sexual intercourse. When Jane grew emotionally erratic and depressed over the semester, even attempting suicide in front of John, he tried to get help for her by reporting the suicide attempt to resident assistants and an adviser. For a period of time afterward, things were quiet between the two.

However, in April 2016, during Purdue’s Sexual Assault Awareness Month, the school hosted numerous events to encourage the reporting of sexual misconduct. The university program dedicated to supporting victims of sexual misconduct included on its Facebook page, among information about sexual violence, an article from the Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are.”

The court summary continued by stating that during that month, Jane reported John had sexually assaulted her. Jane accused him of “groping her over her clothes without her consent” and said he admitted he had “digitally penetrated her” while both were sleeping in Jane’s room.

John found out about Jane’s accusations through a letter from Katherine Sermersheim, Purdue’s Dean of Students and a Title IX coordinator. Though Jane had not filed a formal complaint, Sermersheim said the school would pursue the allegations and assigned two investigators to the case.

John denied the allegations and provided the investigators with friendly text messages Jane had sent him after the alleged assaults, including an invitation to her room. He also discussed details suggesting Jane was having some emotional problems.

Sermersheim sent the completed investigators’ report to Purdue’s Advisory Committee on Equity for a recommendation. She called John to appear before the committee, though the school’s procedures prevented him from obtaining a copy of the report or sharing its contents with him.

“Moments before his committee appearance, however, a Navy ROTC representative gave John a few minutes to review a redacted version of the report,” the court summary noted. “To John’s distress, he learned that it falsely claimed that he had confessed to Jane’s allegations. The investigators’ summary of John’s testimony also failed to include John’s description of Jane’s suicide attempt.”

During John’s meeting with the Purdue Advisory Committee, he discovered two of the three members of the panel said they had not read the report filed by the school’s investigators, and the third asked him questions, he said, that presumed he was guilty of the accusations.

Though John continued to deny the allegations, he was not permitted to bring witnesses, including a roommate who could have affirmed he was present in the room during the alleged sexual assault and that Jane’s allegations were false.

Ultimately, Sermersheim informed John a week later that she found him “guilty by a preponderance of the evidence of sexual violence,” according to the court summary. John was to be suspended from Purdue for one year. He would be required to complete “bystander intervention training” and meetings with one of Purdue’s sexual misconduct program directors if he sought readmission to the school.

John appealed the decision and said when Sermersheim was asked to provide the factual basis for her final decision, she simply repeated Jane’s allegations and wrote, “I find by a preponderance of the evidence that [John Doe] is not a credible witness. I find by a preponderance of the evidence that [Jane Doe] is a credible witness.”

After resigning involuntarily from the Navy ROTC, John filed a lawsuit against Purdue and its officials.

Barrett wrote in her decision:

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.

The judge detailed how a decision that would cause serious consequences for John had been made without seeking any evidence of the truth:

[I]n a case that boiled down to a “he said/she said,” it is particularly concerning that 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.

Barrett added the evidence suggests the Advisory Committee “decided that John was guilty based on the accusation rather than the evidence.”

Approximately 600 lawsuits have been filed since the Obama administration’s “Dear Colleague letter” in 2011 warned colleges and universities they could lose federal funding if they did not make accusations of sexual assault on campus a priority.

The Obama administration also used a false statistic — “one in five” women experience sexual assault in college — that was repeated in the mainstream media and even in mandated sexual misconduct training programs to promote the narrative that women in college were frequently victims of sexual assault.

According to the Bureau of Justice Statistics, however, a division of the Department of Justice, the actual rate of sexual assault on college campuses is 6.1 per 1,000 students, or .03 in five. The rate of rape and sexual assault for non-students is actually 1.2 times higher than for students — 7.6 per 1,000.

Under the Obama-era Title IX policy, students accused of sexual misconduct have regularly been denied the ability to cross-examine their accusers and to have access to the alleged evidence against them. The school investigation teams have often been referred to as “kangaroo courts.”

As the Foundation for Economic Education (FEE) observed last week, prior to President Donald Trump’s nomination of Barrett to the U.S. Supreme Court, Justice Ruth Bader Ginsburg was also critical of the Obama-era campus sex misconduct policy.

In a 2018 interview with the Atlantic, Ginsburg said, “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that.”

“There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” she asserted.

In August, the U.S. District Court for the District of Columbia rejected an attempt by a coalition of 18 Democrat attorneys general to block the Trump administration’s new Title IX rule that governs campus sexual misconduct and stresses the importance of due process for the accused.


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