Railroaded Purdue student to get his day in court, but it wasn’t easy

Purdue University suspended a male student for a year after his former girlfriend accused him of sexual assault. The male student was also kicked out of the school’s Navy ROTC program. This cost him his scholarship and his plan to pursue a career in the Navy.

The male student denies committing sexual misconduct. He also alleges that Purdue took the disciplinary action through a shoddy process in which, among other problems, he was not allowed to present evidence.

The male student presented these claims in a lawsuit against Purdue and several of its officials. He made two claims: (1) that the defendants violated the Fourteenth Amendment by denying him due process and (2) that they violated Title IX of the Civil Rights Act by discriminating against him due to his gender.

A federal magistrate judge bounced this lawsuit from district court. However, the Seventh Circuit Court of Appeals has reinstated it.

Two things strike me about the case. First, the male student (known to the court as “John Doe”) was extremely lucky. The Seventh Circuit judges who heard the case — Amy Coney Barrett, Diane Sykes, and Amy St. Eve — are all strong conservatives. Judge Barrett, who is said to be under consideration by President Trump for the next Supreme Court opening, wrote the opinion.

Second, even with a panel this conservative, John Doe’s success was a close-run thing. The panel’s opinion illustrates how tough it is for victims of universities’ kangaroo courts to obtain justice from the judiciary.

John Doe’s due process claim faced several obstacles. This wasn’t because Purdue afforded him any real “process.” He alleged, among other things, the following:

He was not provided with the investigative report or any of the evidence on which the decisionmakers relied in determining his guilt;

His accuser did not appear before the committee that heard his case;

He had no opportunity to cross-examine his accuser;

The decisionmaker found the accuser credible even though neither she nor the committee talked to the accuser in person;

The accuser did not write her own statement, much less a sworn one;

The decisionmaker was in charge of both the investigation and the adjudication of the case;

The committee refused to allow the accused to present any evidence, including witnesses.

Even so, John Doe has a claim under the Constitution only if he was deprived of life, liberty, or property. Since he wasn’t deprived of life or liberty, the issue boiled down to whether he had a property interest in continuing his education at a state university. The Seventh Circuit held that he did not because Purdue made no contractual promise to this effect.

Fortunately for John Doe, he was able to satisfy the conservative panel that he has a property interest in pursuing his naval career. Purdue, it found, has deprived him of that interest by stigmatizing him in the eyes of the Navy.

You can read the reasoning behind this conclusion for yourself (at pages 11-15 of the Opinion). I’ll just note that the survival of John Doe’s due process claim depends on his participation in ROTC and his claim that he desires a career in the Navy. Absent these facts/allegations, he would have been out of luck on this claim.

Because he was in luck, Doe reached the next due process hurdle — showing that Purdue used fundamentally unfair procedures in determining his guilt. Based on his allegations, as described above, this wasn’t much of an obstacle.

However, the next hurdle — the “qualified immunity” of the defendants — was another story. You can read it at pages 19-21. Spoiler alert: The court found that the individual defendants are not liable for damages because at the time they denied John Doe due process they did not know it was a violation of the law to stigmatize him in the eyes of the Navy.

This left John Doe with only his due process claim for injunctive relief. The Seventh Circuit ruled that he lacks standing to seek an injunction against Purdue’s unfair procedures because he doesn’t intend to re-enroll at Purdue and therefore won’t be subject to these procedures in the future.

The only injunctive relief to which John Doe will be entitled if he prevails is the expungement from his disciplinary record of the finding that he engaged in sexual assault — relief he did not even seek in his court complaint. Thanks for not much.

John Doe’s other claim — sex discrimination in violation of Title IX — requires him to prove he would have been treated differently had he been a female. Proving this is probably easy if a woman on campus has been accused of sexual misconduct. In all likelihood, the woman will not have been railroaded the way John Doe was.

Absent a similarly situated female, proving disparate treatment based on gender looks like a quite a chore. The Seventh Circuit found, however, that John Doe has enough facts pointing in this direction to proceed.

The Obama administration deserves an assist. Its notorious “Dear Colleague” letter may have put John Doe’s discrimination claim over the top.

Readers may recall that in 2011, the Obama Department of Education warned America’s colleges and universities that their federal funding is at risk unless they can show they are vigorously investigating and punishing sexual misconduct. The letter also required recipients to adopt a lenient “more likely than not” burden of proof when adjudicating claims against alleged perpetrators.

John Doe argued that this letter presented Purdue with a financial motive for discriminating against males in sexual assault investigations. Nothing on the face of the letter called for a discriminatory approach to such investigations. However, John Doe reasoned that the letter caused Purdue to signal its commitment to cracking down on campus sexual assault, thereby fending off any suggestion that it was not complying with the Department of Education’s directive, by discriminating against males accused of misconduct.

The “Dear Colleague” letter provides an incentive for the shabby, unfair treatment of those accused of sexual misconduct. And those who are accused will, inevitably, be mostly (if not exclusively) men. However, the letter provides no incentive to treat males accused of misconduct worse than females similarly accused.

Judge Barrett made it clear that the “Dear Colleague” letter alone is not sufficient to make out a sex discrimination case. The panel relied on other facts as well, most notably the decisionmaker’s willingness to believe the female accuser, rather than the male accused, without having even spoken with the female.

In addition, the decisionmaker and the committee appear to have made up their minds without reading the investigative report and before even talking to John Doe. They refused to hear from John Doe’s witnesses, including his male roommate who said he was in the room at the time of the alleged assault, and that the accuser’s rendition of events was false.

The panel also found a hook with which plausibly to attribute this blatant unfairness to gender. Judge Barrett explained:

The plausibility of the inference [that John Doe was disbelieved because he’s a male] is strengthened by a post that Purdue’s Center for Advocacy, Response, and Education (CARE) put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are.”

Construing reasonable inferences in John’s favor, this 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.

I guess we’ll have to give an assist not just to the Obama Education Department, but also to the Washington Post.

John Doe will be able to seek monetary damages based on his Title IX claim. I wonder, though, whether in the absence of the “Dear Colleague” letter, which the Trump administration has pulled, and with a slightly shrewder decisionmaker, other “John Doe’s” can be railroaded the way this one was without recourse.

I also wonder whether even this John Doe would have had recourse, absent a solidly conservative panel.

Courts, often with conservative jurists in the lead, have erected various barriers to judicial interference in our institutions. On the whole, this may be a salutary development. We don’t want judges to be our “robed masters.”

However, I fear that this trend, while limiting the willingness of district court judges to do individual justice in small-time cases like this one, does nothing to curb their eagerness to do social justice in big-time cases involving policy set by the executive or by Congress, including cases where a single local judge grants a nationwide injunction.