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Amy Coney Barrett, potential Supreme Court nominee, wrote influential ruling on campus sexual assault

By Beth Reinhard and Emma Brown The Washington Post, September 20, 2020 Amy Coney Barrett, a leading contender for the Supreme Court seat held by the late Ruth Bader Ginsburg, wrote an influential appellate decision last year that made it easier for students accused of sexual assault to challenge universities’ handling of their cases. Barrett

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Amy Coney Barrett, a leading contender for the Supreme Court seat held by the late Ruth Bader Ginsburg, wrote an influential appellate decision last year that made it easier for students accused of sexual assault to challenge universities’ handling of their cases.

Barrett led a three-woman panel of judges that said Purdue University may have discriminated against a male student accused of sexual assault when it suspended him for a year, a punishment that cost him his spot in the Navy ROTC program.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in the case, in which the accuser was identified as Jane Doe and the accused as John Doe.

On Saturday, President Trump said he would nominate a woman in the next week to fill Ginsburg’s seat. In a call with Senate Majority Leader Mitch McConnell (R-Ky.), Trump mentioned Barrett and Barbara Lagoa, a judge on the U.S. Court of Appeals for the 11th Circuit, according to people familiar with the matter.

In siding with John Doe, Barrett was in line with the majority of rulings in this area of the law since 2011, when former president Barack Obama’s Education Department warned schools that they risked losing federal funding if they did not adequately prioritize sexual assault complaints.

About 600 lawsuits have been filed challenging decisions in campus sexual assault cases since 2011, of which about 30 have gone to federal appeals courts, said K.C. Johnson, a Brooklyn College and CUNY Graduate Center history professor who tracks these cases. The decision Barrett wrote for the U.S. Court of Appeals for the 7th Circuit in John Doe v. Purdue University is the “single most consequential ruling in this area,” he said, because it set a fair, simplified standard that has been adopted by three other circuit courts, covering 22 states, as well as the federal district court in D.C.

“This case was a trendsetter,” said Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, which bars sex discrimination by institutions receiving federal funding. Sokolow, who also serves as president of ATIXA, an association of Title IX administrators, called the opinion “revolutionary” and said it would make it easier for accused students to bring civil litigation against universities to a jury trial.

The lawsuits brought by male students accused of sexual assault generally argue that universities denied their due process rights, or discriminated against them on the basis of sex in violation of Title IX, or both. In many decisions before the Purdue case, Sokolow said, courts upheld accused students’ due process claims but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.

By contrast, the 7th Circuit did not bother with those legal tests and upheld John Doe’s Title IX claim using a simple, streamlined analysis: Was it plausible that the university had been biased against him because he was a man? Yes, Barrett and her colleagues decided, allowing John Doe to continue to press his case by sending it back to the trial court.

John and Jane were students in Purdue’s Navy ROTC program when they began dating in the fall of 2015, according to a summary of the case in the court ruling that relied on John Doe’s presentation of the facts. They had consensual sexual intercourse numerous times. In December, Jane attempted suicide in front of John. He reported her suicide attempt to the university, and they stopped dating.

A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent. Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.

Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations. Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.

That group had posted on its Facebook page a Washington Post column headlined: “Alcohol isn’t the cause of campus sexual assault. Men are.” The university panel did not allow John to present witnesses, including a roommate of his who disputed Jane’s account. And two of the three members of the panel admitted they had not read the investigative report.

“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” Barrett wrote in a decision released nine months after the case was argued.

The Supreme Court has not ruled on a Title IX campus sexual assault case in the past decade, experts said. But Ginsburg, a feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine in which she was asked about due process for those accused of sexual harassment.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” she said. “Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg added that she thought some of those criticisms of college codes were valid.

Critics of the Obama-era guidance, which was rescinded by the Trump administration in 2017, said it set a standard that made it too easy for school officials to discipline students for alleged sexual misconduct. Advocates for sexual assault victims said the guidance was a necessary step toward addressing colleges’ long-standing neglect of victims’ rights.

In the Purdue opinion, Barrett wrote that John Doe’s allegations of gender discrimination were plausible in part because of the pressure that the Obama administration applied to schools and universities to confront sexual harassment and assault.

“The Department of Education made clear that it took the letter and its enforcement very seriously,” Barrett wrote, referring to the 2011 letter that relayed the Obama administration guidance to universities.

The Obama education department opened two investigations into Purdue in 2016, Barrett noted, so “the pressure on the university to demonstrate compliance was far from abstract.”

Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, said she is troubled by the suggestion that the Department of Education taking sexual misconduct seriously — and pressuring schools to do the same — could be construed as evidence of bias against men. Praising Ginsburg’s legacy of fighting for women’s rights, Martin bristled at the prospect of “replacing someone like that with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Martin said that many of the university’s actions as described by John Doe would not have been permitted under the Obama-era guidance. As is typical in such cases, the court considered the facts as alleged by John Doe in deciding whether to grant the university’s motion to dismiss his lawsuit.

Nancy Gertner, a retired federal judge and Harvard Law School professor, said she agreed with Martin’s criticism. But she added that many judges have been concerned about the way universities have handled students accused of sexual assault. “Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Gertner, who was appointed to the bench by former president Clinton.

Education Secretary Betsy DeVos issued new Title IX regulations that expanded the rights of the accused and went into effect last month. The regulations require schools to handle sexual harassment and assault allegations differently than they handle any other kind of student misconduct case, Martin said. The new rules require a live hearing with cross-examination of the accuser, unlike in cases of alleged racial harassment, Martin said, “based on the really toxic idea that women and girls are particularly likely to lie about sexual misconduct.”

Supporters of the DeVos rules say that the stakes are so high in sexual-misconduct cases that cross-examination is appropriate and necessary to ferret out the truth when students’ accounts are at odds.

To win his Title IX claim before a jury, John Doe would still have to prove that he was discriminated against on the basis of his sex. His case is pending in district court. In June, Purdue filed a counterclaim asking the court to declare that Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

“The university is seeking a declaratory judgment that John Doe violated Purdue’s policies based on evidence in the record, which the 7th Circuit was not able to consider for procedural reasons at the time of its ruling,” university spokesman Tim Doty said.

Andrew Miltenberg, a New York lawyer who represents John Doe and has represented many accused students in successful lawsuits against their schools, described Barrett’s decision as the “crescendo” of a gradual movement in the courts toward accepting the idea that gender bias against men can shape universities’ handling of sexual assault complaints.

“There are many judges that have talked about the process or procedures being unfair,” he said. “There haven’t been many judges that have come out and said, ‘Hey, it seems to me that gender could have really played a role here.’ ”