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 2015 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. In 2016 The female 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. Two investigators spoke with Doe—but never spoke with the Female accuser. Nor, did they interview Doe’s roommate who Doe said would back up his version of events. The investigators produced a report for Dean Sermersheim. Purdue refused to share the report with Doe. A “meeting” took place. The accuser did not appear. Sermersheim found Doe guilty. He appealed; the dean denied the appeal. 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.
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. Cherry maintained Doe didn’t have the standing to bring a due process complaint against Purdue. 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.
The Appeal: Doe appealed. He drew an all-female panel in the Seventh Circuit. 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. 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. Barrett 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’?” 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.”
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.
mindingthecampus– KC Johnson
