Will some senators on the Senate Judiciary Committee vilify Judge Amy Coney Barrett, President Trump’s Supreme Court nominee? Attacks on her religion, her large family, or claims that she will block the advance of women may make good fodder for Facebook, but senators who pursue those tacks are likely to reap public disapproval from their own constituents. What is more likely is that liberal senators will take a page from liberal/progressive organizations like Public Justice and portray Barrett as soft on and complicit with campus sexual abusers. How?
The attack has begun. Public Justice is already zeroing in on a 7th Circuit decision, Doe v. Purdue University, written by Barrett for a three-judge panel which heard the case concerning Title IX—the sex discrimination law applied to universities receiving federal funds. Public Justice writer Aleandra Brodsky calls Judge Barrett’s opinion “troubling.” But she doesn’t stop there. The opinion, according to Brodsky, turns “a sex discrimination statute on its head using a law meant to prevent and address sexual assault to promote inpunity for that very same behavior.”
But there is more. A paragraph or so later, Brodsky refers to the Purdue opinion by Barrett as producing “a funhouse mirror vision of Title IX,” a vision that distorts its intent and turns it against the university. In truth, Judge Barrett’s opinion is well-reasoned and protects due process, but its meaning is easily twisted, which is why it is such an attractive target for opponents of Barrett.
How did the case arise? Two Purdue University students, a male and a female, referred to in the case as John and Jane Doe, were both in the Navy ROTC program on campus. Purdue found John guilty of “sexual violence” against Jane after a “procedure” which came very close to a proverbial “kangaroo court.” The university suspended him for one academic year and, as a result, he was expelled from the ROTC program, lost his scholarship, all of which ended his opportunity for a Navy career.
John Doe, the suspended student, then sued Purdue and several of its officials. However, a federal magistrate judge dismissed the case in which he claimed his due process rights were violated and that Purdue itself (ironically) violated Title IX because his trial and punishment were tainted with sex bias toward him as a man. He appealed the dismissal, which was reviewed by Judge Barrett and two other 7th Circuit Judges—Judge Diane Sykes and Judge Amy St. Eve.
The panel was not being asked to retry the case. “Our task,” wrote Judge Barrett, “is not to determine what allegations are supported by evidence but to determine whether John is entitled to relief if everything that he says is true.” This approach is consistent with such appellate reviews of lower court dismissals.
The “facts” regarded most favorably to John were that the two, John and Jane, dated in the fall of 2015 and (in a sad commentary on the effect of “the sexual revolution” on college campuses) the two had consensual sexual intercourse repeatedly. Soon Jane began acting erratically and eventually tried to take her own life. John felt that he must report Jane’s suicide attempt to resident assistants and the disclosure upset Jane. They broke up. A few months later, during a university event called “Sexual Assault Awareness Month,” Jane reported John to the university for sexually assaulting her on two occasions while they were sleeping together. The Title IX coordinator for the university informed John of the allegations and the university’s “process” unfolded with him as a participant. He was eventually found guilty of “sexual violence” and suspended. Though he filed a federal lawsuit against the university, it was dismissed. He appealed that dismissal to the 7th Circuit Court of Appeals.
The first matter which the 7th Circuit panel was asked to review was whether the procedure which Purdue had in place and followed deprived John Doe of his liberty without due process of law under the 14th Amendment. Following a long line of cases, the 7th Circuit panel concluded that the suspension deprived him of liberty to follow his planned lawful occupation or calling—becoming a Navy officer. However, if the procedure that the university followed which resulted in his suspension was fair, then he would not have a claim.
On that question it is not too much to say that Judge Barrett’s opinion for the panel found that Purdue’s process was a procedural travesty. The investigative report prepared by the university was not given to defendant Doe in advance of his hearing before university officials. He saw it only briefly as the proceeding began and found it was incomplete and claimed, falsely, that he had confessed to Jane’s allegations. Jane, the complaining party, did not appear in person before the panel nor herself submit a written statement. Consequently, John had no opportunity to cross examine her. Two of the university officials conducting the hearing confessed that they had not read the report in advance. John was not allowed to present witnesses on his behalf and seemingly the officials ignored evidence of friendly texts that Jane sent to John after the alleged assault, which would have raised questions about the veracity of her claim.
A week later, the Title IX coordinator informed John by letter that she had found him guilty by a “preponderance of the evidence,” which is the least demanding level of proof recognized by courts. He was deemed, according to her, not to be a credible witness while Jane was deemed credible by the same low standard of evidence, even though the coordinator had never spoken to Jane in person. Judge Barrett summarized it this way: “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” The university process was the epitome of unfairness. Due process had been denied.
As to John Doe’s further claim that, in fact, he was a victim of Title IX discrimination based on sex by the university because he was a male, the court also found in his favor. During this period, colleges and universities were under pressure from the Obama administration through the U.S. Department of Education to prosecute allegations of sexual misconduct more rigorously.
The 2011 “Dear Colleague” letter made it clear that by lowering the level of proof necessary to convict an alleged perpetrator, this might be accomplished. The letter ended with a clear message that federal funding would be at risk unless schools were showing that they were cracking down on sexual assaults. John Doe maintained that this was the atmosphere in which his prosecution and trial proceeded. Doe maintained that the unfairness of the proceeding to him and the obvious bias against him as a man showed up repeatedly in the proceedings. The 7th Circuit agreed, though noting that on this claim he would be facing considerable problems of proof when his case was reheard. Judge Barrett and her panel members therefore sent the case back to the district court below.
Despite that fact that the opinion is carefully and methodically reasoned, and was unanimously supported by the three-woman panel of judges, and despite Purdue’s obvious and total disregard for elementary fairness in the proceeding against Doe, one can expect that senators opposing Judge Barrett will try to draw misleading conclusions from it, twist its meaning, and portray her addition to the Supreme Court as sinister.
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