Wednesday, October 16, 2019

Judge Addresses Due Process, 'Sex Bias' in Campus Misconduct Case

Judge Amy Coney Barrett led a unanimous, all-woman panel of judges June 28 in reversing a lower court’s decision to dismiss a college student’s claim his right to due process was not honored and he was discriminated against because of his sex in a campus sex assault investigation.

In her decision for the U.S. Court of Appeals for the Seventh Circuit in Chicago, Barrett, who was appointed by President Donald Trump, noted the judges “disagree” with the lower court. Barrett observed “John Doe” “adequately alleged” Purdue University violated his Fourteenth Amendment rights “by using constitutionally flawed procedures to determine his guilt or innocence,” and that the school had violated Title IX “by imposing a punishment infected by sex bias.”

Purdue investigators found John Doe guilty of sexual violence against “Jane Doe.” The school suspended John for one academic year and subjected his readmission to certain conditions. Following Purdue’s decision, John was expelled from his Navy ROTC program, and lost both his ROTC scholarship to Purdue and his opportunity for a career in the Navy.

According to Barrett, John and Jane dated during the fall semester of 2015 and engaged in consensual sexual intercourse. When Jane grew emotionally erratic and depressed over the semester, even attempting suicide in front of John, he tried to get help for her by reporting the suicide attempt to resident assistants and an advisor.

Barrett wrote:

For a few months, things were quiet between John and Jane. That changed in April 2016, which was Sexual Assault Awareness Month. During that month, Purdue hosted over a dozen events to promote the reporting of sexual assaults. Many of the events were sponsored by the Center for Advocacy, Response, and Education (CARE), a university center dedicated to supporting victims of sexual violence. CARE promoted the events on its Facebook page, along with posts containing information about sexual assault. One of its posts was an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are.”

During Purdue’s Sexual Assault Awareness Month, Jane reported that John sexually assaulted her. As Barrett wrote, Jane accused him of “groping her over her clothes without her consent,” and said he admitted he had “digitally penetrated her” while both were sleeping in Jane’s room.

John found out about Jane’s accusations against him through a letter from Katherine Sermersheim, Purdue’s Dean of Students and a Title IX coordinator. Though Jane had not filed a formal complaint, Sermersheim said the school would pursue the allegations and assigned two investigators to the case.

John denied the allegations and provided the investigators with friendly text messages Jane had sent him after the alleged assaults, including an invitation to her room. He also discussed details suggesting Jane was having some emotional problems.

Sermersheim sent the completed investigators’ report to Purdue’s Advisory Committee on Equity for a recommendation. She called John to appear before the committee, though the school’s procedures prevented him from obtaining a copy of the report or sharing its contents with him.

“Moments before his committee appearance, however, a Navy ROTC representative gave John a few minutes to review a redacted version of the report,” Barrett wrote. “To John’s distress, he learned that it falsely claimed that he had confessed to Jane’s allegations. The investigators’ summary of John’s testimony also failed to include John’s description of Jane’s suicide attempt.”

When John and a “supporter” he was permitted to bring along met with the Advisory Committee, he discovered two of the three members of the panel said they had not read the report filed by the school’s investigators. The third asked him questions that presumed he was guilty.

John again denied the allegations, but was not permitted to bring witnesses, including a roommate who would have affirmed he was present in the room during the alleged sexual assault and that Jane’s accusations were false.

Sermersheim informed John a week later that she found him “guilty by a preponderance of the evidence of sexual violence,” according to Barrett. John’s punishment was suspension from Purdue for one year. Readmission was dependent upon his completion of a “bystander intervention training” and meetings with the CARE assistant director.

When John appealed to the school’s Vice President for Ethics and Compliance, Sermersheim was asked to provide the factual basis for her final decision. She simply repeated Jane’s accusations against John, and then wrote, “I find by a preponderance of the evidence that [John Doe] is not a credible witness. I find by a preponderance of the evidence that [Jane Doe] is a credible witness.”

Following his involuntary resignation from the Navy ROTC, John filed a lawsuit against Mitch Daniels, president of Purdue, Sermersheim, and the other school officials involved in his case.

“John’s circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days,” Barrett wrote. “Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.”

The judge added the evidence suggests the Advisory Committee “decided that John was guilty based on the accusation rather than the evidence.”

In November, Education Secretary Betsy DeVos released a long-awaited proposed Title IX rule, calling for a “presumption of innocence throughout the grievance process,” as well as “written notice of allegations and an equal opportunity to review all evidence collected.”

The new rule would also allow both parties to have the right to cross-examination and would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

Alleged incidents of sexual misconduct would only be investigated if they occurred on campus or during a school-sponsored event, according to the proposed rule.

Under the 2011 Obama-era policy, students accused of sexual misconduct have regularly been denied the ability to cross-examine their accuser and to have access to the alleged evidence against them. The school investigation teams have often been referred to as “kangaroo courts.”

The Obama administration also used a false statistic — “one in five” women experience sexual assault in college — that was repeated in the mainstream media to promote the narrative that women in college were frequently victims of sexual assault.

According to the Bureau of Justice Statistics, however, a division of the Department of Justice, the actual rate of sexual assault on college campuses is 6.1 per 1,000 students, or .03 in five. The rate of rape and sexual assault for non-students is actually 1.2 times higher than for students — 7.6 per 1,000.

The case is Doe v. Purdue University, No. 17-3565, in the U.S. Court of Appeals for the Seventh Circuit.

Dr. Susan Berry

More From: Dr. Susan Berry
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