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Seventh Circuit upholds accused student’s due process, sex discrimination claims
Since 2011, more than 480 students accused of sexual misconduct have sued their universities over campus judicial processes they believe were fundamentally unfair and led to erroneous findings of responsibility. However, relatively few of these cases, which often settle in the early stages of litigation, have made it to the federal appellate courts.
In the most notable federal appellate court decision to date, the U.S. Court of Appeals for the Sixth Circuit ruled last September in Doe v. Baum that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”
Now, in an opinion issued late last week, the Seventh Circuit has ruled that an accused student has plausibly alleged that Purdue University held an unfair proceeding that violated the student’s due process rights. The court also held that the university may have unlawfully discriminated against the plaintiff, suing anonymously as John Doe, on the basis of his sex.
The decision is both a victory for the accused student and a reminder that the courts are an imperfect vehicle for students seeking redress after being subjected to unfair campus disciplinary procedures.
The underlying case involved allegations of sexual misconduct following the end of a dating relationship between John Doe and his accuser, identified as Jane Roe. After an investigation, a three-person panel of the university’s Advisory Committee on Equity was provided with the investigative report and tasked with recommending a result to the Title IX coordinator “after reviewing the report and hearing from the parties.” According to John’s complaint, however, the panel never heard from Jane, either in person or in writing. Rather, an administrator in Purdue’s advocacy office for victims of sexual assault “wrote the Advisory Committee and [the Title IX coordinator] a letter summarizing Jane’s accusations.”
John met with the panel, but he was not allowed to see the investigative report. According to the court, the hearing panel meeting “did not go well for John”:
Two members of the panel candidly stated that they had not read the investigative report. 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.
The panel found him responsible and suspended him for one year, and his appeal was denied. John then filed a federal lawsuit alleging that Purdue had violated his constitutional due process rights and had discriminated against him on the basis of sex in violation of Title IX. The lower court ruled against him and dismissed his case, and he appealed to the Seventh Circuit.
In order to have a right to due process, a plaintiff must have a protected liberty or property interest, as the Due Process Clause prohibits government actors from depriving one of “life, liberty, or property” without due process of law. John’s due process claim was complicated by the fact that unlike most courts, the Seventh Circuit “has rejected the proposition that an individual has a stand-alone property interest in an education at a state university.” Rather, “[i]n the context of higher education, any property interest is a matter of contract between the student and the university.” Because John did not point to a specific contractual promise that Purdue broke in the adjudication of his case, the court held that he had not sufficiently alleged that he was deprived of a property interest.
The court found that he did, however, adequately allege that Purdue deprived him of a protected liberty interest in pursuing a career in the Navy: Following his suspension, he was expelled from Purdue’s Navy ROTC program, “which terminated both his ROTC scholarship and plan to pursue a career in the Navy.”
The court then ruled that John had adequately alleged that Purdue used unfair procedures that violated his right to due process. For one thing, the court was deeply troubled by the fact that John was not allowed to see the investigative report, finding that “withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”
The court also found that the hearing was a “sham” because two of the three panelists openly admitted they had not read the investigative report, meaning that “they decided that John was guilty based on the accusation rather than the evidence,” and because they had deemed Jane more credible than John without ever speaking with her or even receiving a statement she had written herself. This lack of a meaningful credibility assessment was “all the more troubling because John identified specific impeachment evidence,” such as the fact that Jane may have been angry with him for reporting her suicide attempt.
With regard to the individual administrators, however, the court held they were entitled to qualified immunity, which protects public officials from being held individually liable for violating a constitutional right unless that right is “clearly established.” So even though John had adequately alleged a constitutional violation, the Seventh Circuit granted the administrators qualified immunity because the court had not previously found a protected liberty interest in continued public higher education:
Because this is our first case addressing whether university discipline deprives a student of a liberty interest, the relevant legal rule was not “clearly established,” and a reasonable university officer would not have known at the time of John’s proceeding that her actions violated the Fourteenth Amendment.
The court did, however, allow John’s due process claim to proceed based on his request for an injunction “ordering university officials to expunge the finding of guilt from his disciplinary record,” and ordered the lower court to address that claim on remand.
Overall, this ruling highlights the difficulty for accused students of obtaining relief in the courts even when those courts agree that a university’s procedures were unfair. Here, despite the court’s obvious and profound concern with the fairness of Purdue’s disciplinary process, its ruling on John’s due process claim was quite limited because of (1) the Seventh Circuit’s narrow view of the circumstances under which public universities owe due process to their students, and (2) the extent to which courts immunize public university administrators from liability from all but the most egregious constitutional violations.
John Doe’s Title IX claim was more successful. Unlike most courts, the Seventh Circuit declined to separate its Title IX analysis into distinct doctrinal tests—“erroneous outcome,” “selective enforcement,” etc.—and asked simply whether “the alleged facts, if true, raise a plausible inference that the university discriminated against John ‘on the basis of sex’?” The court then answered that question in the affirmative.
The court acknowledged the pressure put on Purdue both by the Office for Civil Rights’ April 4, 2011 Dear Colleague letter and by the fact that Purdue was under two OCR investigations at the time that John’s case was being adjudicated. But while the court found that the letter and investigations were part of the picture, it also required that John point to some case-specific facts suggesting that gender was a motivating factor in the adjudication of his case. According to the court:
John has alleged such facts here, the strongest one being that [Purdue’s Title IX coordinator] chose to credit Jane’s account without hearing directly from her.
Overall, the court found that:
It is plausible that [the Title IX coordinator] and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that [Purdue’s Center for Advocacy, Response, and Education] 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.
The court remanded the case back to the district court for further proceedings, and we will keep you updated on any developments in this case.
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