President Barack Obama’s Department of Education published a now-famous “Dear Colleague Letter” in 2011, which compelled universities receiving federal Title IX funds to conduct an immediate investigation into allegations of sexual assault and effectuate a prompt adjudication.
Assistant Secretary for Civil Rights Russlynn Ali, a lawyer but evidently not a very good one, decreed in the letter that universities, in judging sexual assault claims, must disavow the clear and convincing evidentiary standard of proof in favor of the far more forgiving and error-prone preponderance of the evidence standard.
The manifest injustice that has resulted from this due process downgrade is legion. But a recent United States Court of Appeals for the Seventh Circuit decision, authored by Judge Amy Coney Barrett (who is on President Trump’s shortlist for the Supreme Court), delivered a powerful rebuke to the college show trials encouraged by the Obama-era Department of Education.
In John Doe v. Purdue University, we learn the plight of John Doe, a Purdue and Navy ROTC student accused by his suicidal ex-girlfriend, Jane Doe, of “groping her over her clothes without her consent.” As a result, Purdue’s Title IX coordinator sent John a letter stating “that the university had elected to pursue Jane’s allegations even though Jane had not filed a formal complaint.”
Thus, John Doe entered the peculiar world of campus kangaroo courts.
John unequivocally denied Jane’s allegations and provided campus investigators with evidence in support of his innocence. Investigators received this evidence, but nevertheless issued a report to Purdue’s Advisory Committee on Equity, which John was not permitted to review, falsely claiming he had confessed to Jane’s allegation.
At the inquisition, two panel members who had not read the report grilled John with questions that assumed his guilt. More troubling, the panel denied John’s request to present witnesses, including an eyewitness “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.”
Not surprisingly, given the lack of credible procedural protections to facilitate truth-seeking, John was “found guilty by a preponderance of the evidence of sexual violence.” Naturally, the same judge and jury — the Title IX coordinator — performed the execution: John was sentenced to a year-long suspension, enrollment in “bystander intervention training” (whatever that means), and a meeting with a sexual violence coordinator when he returned to school. The Navy ROTC program then expelled him and terminated his scholarship.
Like the more than 480 college students who have suffered adverse findings in these proceedings, John sued Purdue for violating his due process rights.
Writing for the three-judge panel, Judge Barrett overturned the lower court’s finding that John’s due process rights were not violated. To satisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Here, “two of the three [Purdue] 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,” the judge reasoned.
Similarly, in this “he said/she said,” Barrett found it “particularly concerning that [the Title IX coordinator] 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.”
On these facts, Barrett concluded, with judicious understatement, that the proceeding “was fundamentally unfair to John,” and “fell short of what even a high school must provide to a student facing a days-long suspension.”
Although the intellectual crusade against due process and the presumption of innocence began during the Obama administration, it reached its most chilling emotional apex during the moral hysteria that surrounded Brett Kavanaugh’s Supreme Court confirmation hearing. The Seventh Circuit’s decision not only serves to return fundamental fairness to proceedings in which college students stand accused of very serious crimes, but also to restore a modicum of perspective to a political and cultural moment marred by accusation, mistrust, and paranoia.
Well done, Judge Barrett.
Craig Trainor is a criminal defense and civil rights attorney in New York City. He previously served as a prosecutor and as a law clerk to a federal judge. You can find him on Twitter: @TrainorLaw.
