Amy Coney Barrett Condemns Purdue University's "Fundamentally Unfair" Adjudication of Sexual Assault Claims

By Jacob Sullum
Reason (blog)
September 27, 2020

John and Jane, two students in Purdue University's Navy ROTC program, began dating in the fall of 2015 and had consensual sex 15 to 20 times. According to John, Jane's behavior became increasingly erratic, culminating in a suicide attempt he witnessed that December. They broke up in January 2016, after John tried to get Jane help by reporting her suicide attempt to two resident assistants and an adviser.

Three months later, in the midst of the university's s Sexual Assault Awareness Month, Jane alleged that John had sexually assaulted her on two occasions. Those charges ultimately led Purdue, a state university in West Lafayette, Indiana, to suspend John for a year, forcing him to resign from ROTC and ending his plans for a career in the Navy. The process that led to those results, Supreme Court nominee Amy Coney Barrett concluded in a 2019 opinion for a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, "fell short of what even a high school must provide to a student facing a days-long suspension."

The case, which Ben McDonald covered here last year, illustrates the extent to which universities, responding to a 2011 "Dear Colleague" letter from the U.S. Department of Education, created procedures that effectively presumed the guilt of students charged with sexual assault. That letter warned university officials that their handling of such cases would be scrutinized under Title IX, which prohibits sex discrimination in educational programs that receive federal funding. The department broadened the definition of "sexual harassment," required schools to assess charges based on a "preponderance of the evidence" (meaning they are more likely than not to be true) rather than a stricter standard, and encouraged other short cuts by universities keen to maintain federal funding.

The upshot was that many students facing sexual assault charges did not receive anything resembling due process. The plaintiff in this case, identified in court documents as "John Doe," was accused of digitally penetrating his then-girlfriend, identified as "Jane Doe," while she was asleep and, on another occasion, groping her over her clothes, also while she was asleep. John denied both accusations, citing Jane's continued friendly texts with him after both alleged incidents, noting that a roommate who was present on one of those occasions denied that anything like what Jane described had happened, and offering the testimony of character witnesses. He also suggested that Jane was angry with him because he reported her attempted suicide, an intervention that had precipitated their breakup.

But John never really got a chance to present a defense, because university officials had already made up their minds. Barrett's description of what happened is based on John's account, because at this stage of the case she was deciding whether he had stated legal claims against the university that he should be allowed to pursue, assuming the facts he alleged were true. But most of the facts, especially as they relate to the university's biased process for investigating sexual assault allegations, are undisputed.

Although Jane never filed a formal complaint and never testified about the alleged assaults, the university pursued the case on her behalf. John said he first heard about the allegations when he received a letter from Katherine Sermersheim, Purdue's dean of students and a Title IX coordinator. At that point, Barrett notes, "John was suspended from the Navy ROTC, banned from all buildings where Jane had classes, and barred from eating in his usual dining hall because Jane also used it."

Sermersheim charged two underlings with investigating Jane's allegations. Their report was submitted to a three-person panel of Purdue's Advisory Committee on Equity, which was responsible for recommending how the university should respond. John was not allowed to see the full report, but a Navy ROTC representative gave him a redacted version a few minutes before John was scheduled to appear before the committee. John discovered that the investigators claimed he had confessed—which was not true, he said—and that they had omitted any reference to Jane's suicide attempt, which was relevant in evaluating her credibility and her possible motive for making false charges.

John and the "supporter" he was allowed under Purdue's rules met with the advisory committee for half an hour. "The meeting did not go well for John," Barrett notes. "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."

A week later, John received a letter in which Sermersheim said she had found him guilty by a preponderance of the evidence. She suspended him for a full academic year and conditioned his return to school on completion of "bystander intervention training" and meetings with Purdue's Center for Advocacy, Response, and Education, which supports victims of sexual violence.

John appealed Sermersheim's decision to Alysa Rollock, Purdue's vice president for ethics and compliance, who asked Sermersheim to explain the factual basis for her finding. Sermersheim said she had found John guilty based on her assessment of his credibility and Jane's. "I find by a preponderance of the evidence that [John] is not a credible witness," she wrote. "I find by a preponderance of the evidence that [Jane] is a credible witness." Although Jane never appeared before the advisory committee and Sermersheim never talked to her in person, that assessment was good enough for Rollock, who confirmed Sermersheim's ruling and the sanctions that accompanied it.

John, who was forced to leave Navy ROTC because of that decision, sued Sermersheim, her investigators, Rollock, Purdue President Mitch Daniels, and the university's trustees in 2017, arguing that his treatment violated the 14th Amendment's guarantee of due process and Title IX's ban on sex discrimination. After a federal judge dismissed all of his claims, Barrett and two other 7th Circuit judges concluded that John's due process and Title IX claims against the university should have survived.

Regarding the due process claim, the judges found that the damage to John's career plans affected a "liberty interest" protected by the 14th Amendment. And taking the facts stated by John as true, they said, it was clear that Purdue's procedures fell short of due process.

"John received notice of Jane's allegations and denied them, but Purdue did not disclose its evidence to John," Barrett wrote for the unanimous three-judge panel. "Withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair."

There were other problems with Purdue's process. "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," Barrett noted. "And in 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."

Sermersheim and the committee also gave short shrift to John's countervailing evidence. "Sermersheim and the Advisory Committee may have concluded in the end that John's impeachment evidence did not undercut Jane's credibility," Barrett wrote. "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." And because Jane never testified, John never had a chance to cross-examine her.

In these circumstances, Barrett and the two other judges concluded, John should be able to seek an injunction requiring the university to expunge its finding of guilt from his disciplinary record, thereby removing a crucial obstacle to his career plans. They also found his allegation of sex discrimination plausible.

John argued that the Education Department's 2011 guidance, which Education Secretary Betsy DeVos has reversed precisely because of concerns about its impact on due process, gave Purdue a financial incentive to slant its adjudication process against male students like him. While the letter might be relevant in evaluating Purdue's motive, Barrett said, it was not enough, by itself, to make John's sex discrimination claim credible.

But Barrett noted additional evidence cited by John, including the fact that "Sermersheim chose to credit Jane's account without hearing directly from her." According to John's lawsuit, the advisory committee was "similarly biased in favor of Jane and against John." Barrett thought it was "plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John

because he is a man."

Barrett also noted a Washington Post article that Purdue's Center for Advocacy, Response, and Education (CARE) "put up on its Facebook page during the same month that John was disciplined." The headline: "Alcohol Isn't the Cause of Campus Sexual Assault. Men Are." That 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," Barrett wrote. Notably, CARE's director wrote a letter about Jane's charges that "Sermersheim apparently gave significant weight."

None of this necessarily means that John will ultimately win his lawsuit, which remains unresolved. But Barrett thought he should at least get a chance, and her reasoning reflects a concern about due process that should be welcomed by people on the left as well as the right.

That probably will not happen, however. Adam Liptak, who covers the Supreme Court for The New York Times, cites John Doe v. Purdue University in an article that says Barrett "has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration." He mentions the case under the "discrimination" heading, implying that her position reflected insensitivity to that concern. But leaving aside the fact that John claimed he was a victim of sex discrimination, Barrett's opinion is mainly about due process, the lack of which may or may not have been related to John's sex but should in any case trouble any fair-minded person.

Liptak contrasts Barrett with her mentor, the late Justice Antonin Scalia, for whom she clerked in the late 1990s. "While Justice Scalia's methods occasionally drove him to liberal results, notably in cases on flag burning and the role of juries in criminal cases," he says, "Judge Barrett could be a different sort of justice." There is not much evidence to support that distinction, especially given Barrett's opinions in cases involving the Fourth Amendment, excessive federal sentences, and qualified immunity for police officers. And if upholding the due process rights of someone facing sexual assault charges does not count as a "liberal result," the term has lost all meaning.








Any original material on these pages is copyright © 2004. Reproduce freely with attribution.