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Sex, Due Process and Amy Coney Barrett

Three other appellate courts followed her 2019 Title IX opinion—a mark of her quality as a jurist. By KC Johnson Sept. 30, 2020 7:15 pm ET Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As

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Three other appellate courts followed her 2019 Title IX opinion—a mark of her quality as a jurist.


Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist.

The case involved a relationship between two Purdue University students that ended after the male student reported his girlfriend’s suicide attempt to school officials. Four months later, the female student claimed that before they broke up, her boyfriend had sexually assaulted her as she slept. She had a campus victims’ rights group write her statement and then declined to appear at the Title IX hearing. A three-member university panel nonetheless found her claims credible, despite never hearing directly from her.

The panelists based their decision on an investigative report that the accused student said university officials refused to let him see. Their decision cost the accused student his ROTC scholarship and a potential career in the Navy. His case eventually came before a panel of Judges Barrett, Diane Sykes and Amy St. Eve in September 2018. Judge Barrett wrote its unanimous 30-page ruling nine months later.

The opinion was noteworthy for three reasons. First, it devised a new standard—both simpler and fairer—for courts to evaluate Title IX claims filed by accused students. The previous standard, offered by the Second Circuit in 1994, required accused students to jump through doctrinal hoops to raise a plausible claim. Courts would first establish whether a wrongful finding of guilt might have occurred, then search for sex discrimination elsewhere in the process, rather than evaluating the college’s adjudication as a whole.

Judge Barrett’s opinion dispensed with all this. Instead, she returned to the text of the statute, and instructed courts to ask a simple question: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the accused student] ‘on the basis of sex’?” The Purdue panel answered that question in the affirmative, citing the combination of the student’s likely innocence, the university’s procedural irregularities, and possible sex bias by the organization that drafted the accuser’s statement.

Second, the quality of the opinion has given it an outsize impact. In the past four months, three other appeals courts have adopted the Purdue test for Title IX lawsuits in states under their jurisdiction. Citing the Purdue opinion, Judge Raymond Kethledge of the Sixth Circuit argued in a June decision that an Oberlin College accused student’s “strongest evidence is perhaps the merits of the decision itself in his case,” since in a Title IX case where a school finds a seemingly innocent student guilty, “the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.”

In September, the Eighth Circuit, also using the Purdue standard, issued a similar ruling in a case involving a University of Arkansas student whose guilty finding the court described as “unexplained” based on the record. And the Third Circuit explained that Judge Barrett’s proposed “straightforward pleading standard . . . hews most closely to the text of Title IX.” Given that Supreme Court opinions must not only decide the case before them but also provide clear guidance for lower courts, it’s significant that other appeals courts are adopting the Purdue opinion’s reasoning.

Judge Barrett devised a standard that protects likely innocent students, giving priority to the text of the statute itself to produce a simpler test for courts to follow. It is an impressive accomplishment.

Finally, the Purdue opinion rebuts criticism of Judge Barrett as a jurist focused on outcomes and blinded by ideology. The accused student also alleged that Purdue violated his constitutional rights, including by denying him the chance to cross-examine his accuser. Such claims are common in Title IX litigation; after the Obama administration “strongly” discouraged cross-examinations, most universities barred them.

The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint.

As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

Mr. Johnson is a co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”