Second Circuit holds Ivy League school owed faculty member due process protections

As FIRE noted last week, courts around the country continue to address the level of due process universities must provide in sexual misconduct proceedings. In Vengalattore v. Cornell University, decided earlier this month, a federal appeals court affirmed that Title IX requires private universities to provide due process protections and revived a faculty members’ Title IX claim of gender discrimination against Cornell University. 

Notably, in a brief but striking concurrence, Judge José Cabranes of the U.S. Court of Appeals for the Second Circuit placed the case squarely within the broader context of the erosion of due process protections on campuses across the country. Highlighting what he referred to as a “decline” in institutional protection of open inquiry and academic freedom, Judge Cabranes’ concurrence is a powerful and dire warning, concluding that “these threats to due process and academic freedom are matters of life and death for our great universities.” 

In the case, Dr. Mukund Vengalattore alleged that Cornell discriminated against him when it investigated a graduate student’s claim that the two had been in a secret consensual sexual relationship and that, during this relationship, he had raped her. While under consideration for tenure in late 2015, Vengalattore was informed that the graduate student (referred to as “Jane Roe”) had recently leveled the allegations against him. Roe alleged the misconduct had occurred four years prior, in 2011, at the time she was working in his lab under his supervision. Vengalattore denied Roe’s allegations and told investigators that the two had never been in a relationship.

Vengalattore asked the investigators for the assistance of counsel, but he was told that counsel was unnecessary and the interview continued.

Cornell ultimately did not find that he had raped Roe, but the university determined that the consensual sexual relationship was more likely than not to have occurred. The university determined such a relationship violated university rules governing conduct between faculty and the students under their supervision, and that Vengalattore had lied to investigators about the relationship. As a result, Vengalattore’s tenure bid was denied. He was also suspended for two weeks without pay, and his academic appointment at Cornell ended in June 2018. 

A lower court dismissed Vengalattore’s Title IX gender discrimination claim, ruling that Title IX did not provide him a mechanism to sue Cornell as an employee. Overturning the district court on appeal, and reviving Vengalattore’s Title IX claim, the Second Circuit is now the fifth federal appellate court to determine that an employee has an implied private right of action under Title IX, joining the First, Third, Fourth, and Sixth Circuits. 

Cornell ignored policies, violated due process

Turning to the particular facts underlying Vengalattore’s claim, the court found it was “easily” plausible that the university was motivated to favor his accuser on the basis of gender. The court highlighted that Cornell ignored its own policies that set “explicit time limits” for investigating this sort of misconduct claim. 

When the dean was informed by investigators of this fact, she allegedly instructed them to proceed under a different policy that the Faculty Handbook places under the jurisdiction of a faculty committee. This means that the investigators were either time-barred or entirely lacked the jurisdiction to continue their investigation. 

Too often, university officials view even their own procedures as impediments to justice, annoyances to be ignored.

Undeterred, the investigators interviewed Vengalattore, giving him only one day of notice that he was being investigated for allegedly engaging in the secret consensual relationship with Roe. The opinion notes that it was not until the midway point of this interview that he was informed that Roe had also accused him of rape. Vengalattore asked the investigators for the assistance of counsel, but he was told that counsel was unnecessary and the interview continued. 

The majority opinion by the Second Circuit lists several other deficiencies in the investigation that bolstered Vengalattore’s claim of bias. These included specific examples of the investigators failing to follow up on evidence that cast doubt on the likelihood of the secret relationship ever taking place, their declining to interview several witnesses identified by Vengalattore, and the investigatory report making a final determination without giving Vengalattore a presumption of innocence, instead saying that neither party had a burden of proof.

‘Brutish overreach of university administrators’

Additionally, the opinion notes that the claim of gender bias is further reinforced by external pressures on Cornell to demonstrate a commitment to preventing sexual misconduct on campus. The opinion points to guidance in effect at the time from the Department of Education making clear that failure to “prevent unwelcome sexual advances by faculty toward students” could result in loss of federal funding, as well as Cornell’s inclusion on the Department’s public list of schools suspected of failing to meet this standard. It also noted an investigator’s statement to Roe that Cornell was working “very aggressively to address issues of access, prevention and culture change.”

As strong and sweeping as the majority opinion is, Judge Cabranes’ concurrence is especially notable for its poignant analysis of the broader landscape of due process on American campuses. It is worth reprinting in its entirety (citations omitted):

I concur in the judgment of the Court and in Judge Kearse’s comprehensive opinion. I pause briefly to comment, in my own name, that, as alleged, this case describes deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX and other closely related statutes. In many instances, these procedures signal a retreat from the foundational principle of due process, the erosion of which has been accompanied — to no one’s surprise — by a decline in modern universities’ protection of the open inquiry and academic freedom that has accounted for the vitality and success of American higher education.

This growing “law” of university disciplinary procedures, often promulgated in response to the regulatory diktats of government, is controversial and thus far largely beyond the reach of the courts because of, among other things, the presumed absence of “state action” by so-called private universities. Thus insulated from review, it is no wonder that, in some cases, these procedures have been compared unfavorably to those of the infamous English Star Chamber.

Vengalattore’s allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell’s investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances.

There is no doubt that allegations of misconduct on university campuses — sexual or otherwise — must, of course, be taken seriously; but any actions taken by university officials in response to such allegations must also comport with basic principles of fairness and due process. The day is surely coming — and none too soon — when the Supreme Court will be able to assess the various university procedures that undermine the freedom and fairness of the academy in favor of the politics of grievance. 

In sum: these threats to due process and academic freedom are matters of life and death for our great universities. It is incumbent upon their leaders to reverse the disturbing trend of indifference to these threats, or simple immobilization due to fear of internal constituencies of the “virtuous” determined to lunge for influence or settle scores against outspoken colleagues. 

Colleges and universities would be wise to pay heed to Judge Cabranes’ words. The behavior alleged by Vengalattore is among the most straightforward examples of how, too often, university officials view even their own procedures as impediments to justice, annoyances to be ignored. As such, this case represents an important win for due process rights, particularly for faculty at private institutions. 

FIRE will continue to keep you posted on any new developments in this case.