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Amy Coney Barrett Could Change Campus Sexual Assault Rules Forever

Newsweek Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, could have a huge impact on how campus sexual assault cases are handled if appointed to the nation’s highest court. Experts told Newsweek how Barrett’s appointment could affect Title IX after she wrote an appellate decision

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Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, could have a huge impact on how campus sexual assault cases are handled if appointed to the nation’s highest court.

Experts told Newsweek how Barrett’s appointment could affect Title IX after she wrote an appellate decision last year that made it easier for students accused of committing campus sexual assaults to challenge their university’s handling of the cases.

Title IX is the landmark civil rights law passed as part of the Education Amendments of 1972, aimed at protecting students from discrimination based on sex in education programs or activities that receive federal financial assistance.

A spokesperson for the University of Notre Dame, where Barrett is on the faculty, directed inquiries to the White House.

In a statement, a White House spokesperson said: “In Doe v. Purdue, Judge Barrett understood the importance of fair procedures for campus sexual misconduct proceedings and that Title IX protects both men and women from sex discrimination in such proceedings. In addition, Judge Barrett’s approach has been favorably cited by the Third, Sixth, and Eighth circuits.”

Barrett’s decision in Purdue University case

Last year, Barrett wrote an influential unanimous three-judge panel decision in the case of John Doe v. Purdue University for the U.S. Court of Appeals for the Seventh Circuit—a case involving students, identified only as Jane and John Doe, at the university in West Lafayette, Indiana.

Jane alleged her boyfriend had sexually assaulted her on two occasions in November 2015. John later filed a federal lawsuit against the university, arguing it had used constitutionally flawed procedures to determine his guilt. He also claimed the school had violated Title IX when it expelled him and took away his Navy ROTC scholarship.

In her decision, Barrett concluded Purdue’s process had been unfair and that the university may have discriminated against John based on his sex.

According to a summary of the case in the ruling, based on John’s account, Jane and John had been students in Purdue’s Navy ROTC program when they started dating in the fall of 2015. They had consensual sex between 15 and 20 times between October and December that year.

In December, Jane attempted suicide in front of John and they stopped dating after he later reported the attempt to the university. A few months later, during the university’s Sexual Assault Awareness Month, Jane accused John of sexually assaulting her on two occasions.

She alleged that she had been sleeping with John in his room in November 2015 when she woke to him groping her over her clothes without her consent. She said she had told him it was not okay.

Jane also alleged that John then confessed he had digitally penetrated her while the two were sleeping in Jane’s room earlier that month. John denied all of Jane’s allegations.

She never filed a formal complaint or testified about the alleged assaults, but the university pursued the case on her behalf, according to Barrett’s decision.

“The case against him boiled down to a ‘he said/she said’—Purdue had to decide whether to believe John or Jane,” Barrett wrote.

Barrett criticized Katherine Sermersheim, the university’s dean of students and Title IX co-ordinator, who allegedly sided with Jane without speaking to her. “It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote.

She added: “Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible.

“Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words.”

Barrett also cited the university’s alleged mistakes in the handling of the case, saying John was not allowed to view the investigators’ report and had been handed a redacted version only moments before his disciplinary hearing.

According to Barrett’s ruling, John learned that it falsely claimed he had confessed to Jane’s allegations and did not mention that John had reported Jane’s suicide attempt to the university.

“Two members of the panel candidly stated that they had not read the investigative report,” Barrett wrote. “The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults.”

Jane did not appear before the disciplinary panel or submit a written statement, the decision said. Instead, a written summary of her allegations was submitted by the Center for Advocacy, Response, and Education (CARE), a campus group dedicated to supporting victims of sexual violence.

The group posted an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are” on Facebook the same month John was disciplined, Barrett wrote in the ruling.

The university’s disciplinary panel also did not allow John to present witnesses, Barrett wrote, which included a male roommate who was reportedly in the room at the time of the alleged assault and disputed Jane’s account.

Barrett concluded the university’s process “fell short of what even a high school must provide to a student facing a days-long suspension.”

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair,” she wrote.

“It is particularly concerning that Sermersheim 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.”

Barrett also said that John’s claims of sex discrimination were bolstered by the pressure put on schools and university by the Obama administration to tackle sexual assault and harassment on campus.

Because the Department of Education’s Office of Civil Rights had opened two investigations into Purdue in 2016, the pressure on the university to demonstrate compliance “was far from abstract,” Barrett wrote. “That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue’s compliance.”

The lawsuit remains unresolved and John still needs to prove he was discriminated on the basis of his sex to win his Title IX claim before a jury.

How Barrett’s decision could change campus sexual assault rules

Andrew Miltenberg, an attorney representing John, told Newsweek that Barrett’s ruling “set a standard by which [schools] have to hold themselves during an investigation.”

He added that it “not only recognized that there are procedural due process issues, which have to be preserved for someone accused, regardless of what they’re accused of but it also accepted the fact that it’s possible that, whether it’s an investigator, a hearing officer, or a campus culture, there can be bias within the system based on gender and based on a male being the accused.”

Miltenberg added: “We’re not at the point where a judge can decide whether we have enough evidence to win the case, that’s what the discovery process is for, but we are at a point for a judge to recognize that there is a basis for these allegations.”

According to The Washington Post, Purdue University filed a counterclaim in June asking the court to declare Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

Tim Doty, a spokesman for the university, said in a statement to Newsweek: “While Purdue believes in its process and decision-making, we recognize the appellate court was bound by legal procedure to accept each of John Doe’s allegations as true and did not have the benefit of a full evidentiary record when it decided the case.

“That evidentiary record is currently being developed in the district court, and the university looks forward to the opportunity to present its full defense of this matter at the appropriate time and in the appropriate venue.”

Ruth Bader Ginsburg’s views on Title IX

The late Justice Ruth Bader Ginsburg, who Barrett would be replacing if confirmed, has spoken about due process for those accused of sexual misconduct—and said she believed criticism of some college codes of conduct on the matter was valid.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg told The Atlantic in 2018.

“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.”

Asked about how to balance due process with the need for increased gender equality, Ginsburg replied: “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, says Barrett’s opinion in Purdue would make it easier for accused students to bring civil litigation against universities.

“If an erroneous outcome case makes it to the Supreme Court, Barrett as the author of Doe v. Purdue University, would be a likely vote in favor of the “plausible inference” standard,” he told Newsweek.

“Setting up the kind of circuit split the Supreme Court likes to referee, other circuits seem to follow a pleading standard that makes it harder for a respondent in a campus sexual assault case to prove the outcome of the campus case was infected with sex bias.

“Barrett’s lowering of that standard in Purdue, if adopted by the Supreme Court, would make it much easier for respondents to sue and move their cases forward through motions to dismiss and perhaps summary judgment. They still have to prove sex bias at trial, but Barrett’s opinion in Purdue greatly simplifies the ways that respondents can prove disparate treatment under Title IX.”

“Drastically rolls back protections for student survivors”

Sokolow noted that Barrett’s appointment to the Supreme Court could also significantly affect Title IX in other ways.

He said Kollaritsch v. Michigan State University Board of Trustees is likely headed to the Supreme Court. “This case is fundamental to the future of Title IX, and will decide whether post-harassment or assault is required for deliberate indifference liability under Title IX,” he explained.

“The key question is once sexual harassment and/or assault takes place, and a school is deliberately indifferent to it, does it have to lead to a second act of sexual harassment or assault for liability to result? Barrett would be a likely “yes” vote in a decision that would significantly narrow the Court’s previous precedent in Davis v. Monroe County.”

The Supreme Court’s ruling in that case held that schools may be liable under Title IX if their response to a known act of student-on-student sexual harassment was “deliberately indifferent.”

Emily Martin, the vice president of education and workplace justice at National Women’s Law Center, told Newsweek that it was “deeply troubling” that a school’s commitment to taking sexual misconduct seriously had been suggested by Barrett as evidence of bias against men in the Purdue case.

“It’s a deeply troubling prospect that an icon of gender equality like Justice Ginsburg could be replaced with a judge who is eager to use sex discrimination laws in order to attack efforts to forward gender equality,” she said.

“It is no surprise the same administration that is doing everything it can to silence student survivors would put forward a nominee who goes out of her way to endorse this backwards and harmful view of Title IX.”

Martin’s was referring to changes to the Department of Education’s Title IX rules by Secretary Betsy DeVos that give a number of protections to those accused of sexual assault on college campuses, which came into effect in August.

They new guidelines narrow the definition of what can be deemed sexual harassment and require in-person cross-examinations between alleged perpetrators and their accusers.

Know Your IX, a political advocacy group, said the move “drastically rolls back protections for student survivors and makes it easier for schools to sweep sexual harassment under the rug.”

K.C. Johnson, a history professor at Brooklyn College and the City University of New York Graduate Center described Barrett’s decision in the Purdue case as the “single most consequential ruling in the area.” He told the Post that it had set a fair, simplified standard that has since been adopted by other circuit courts covering 22 states as well as the federal district court in Washington, D.C.

But Alexandra Brodsky, a staff attorney at Public Justice, a nonprofit legal advocacy organization, told Newsweek: “If Judge Barrett’s approach in Doe v. Purdue were to become the law of the land, though, schools and civil rights agencies would be in a terrible bind:

“By her logic, any efforts to enforce the rights of survivors and other marginalized people are evidence of bias against men and other dominant groups. That is wrong as a matter of law and reality. Students of all genders—men included—benefit when schools respect victims’ rights under Title IX.”

In a recent blog post, Brodsky wrote that Barrett’s opinion in John Doe v. Purdue University was “troubling” because the ruling “turned a sex discrimination statute on its head, using a law meant to prevent and address sexual assault to promote impunity for that very same behavior.”

She said while Barrett’s decision on due process in the case may “may well have been right,” the ruling on the Title IX claim is not only wrong, but “disturbing.”

“Even by Doe’s own account, there was no evidence the school had suspended him because of his sex, as required to state a claim under Title IX,” according to Brodsky.

One of the most disturbing aspects of Barrett’s decision is that “it treats the Department of Education’s efforts to enforce survivors’ Title IX rights as evidence of anti-male bias,” she said.

“Yet Judge Barrett relied on evidence that the school was trying to do right by survivors as evidence that it discriminated against men specifically. That will discourage schools from meaningfully addressing sexual violence, since doing so may—according to Purdue’s funhouse mirror vision of Title IX—justify a suspended student’s suit.”

She said, by Purdue’s logic, any attempt to combat discrimination “will instead serve to protect people who discriminate from consequences for their actions—consequences that may be necessary to root out injustice.”

This article has been updated with a statement from a White House spokesperson.