A Potential Justice’s Opinion: Amy Coney Barrett on Due Process in Collegiate Sexual Assault Hearings
The News
It was a late Friday evening in Cincinnati when I got the news. I sat at a patio table with my fiancé and my best friend, eating a late dinner and watching club goers shuffle by when my iPhone alerted me that Supreme Court Justice Ruth Bader Ginsburg had passed away. Knowing her fight with pancreatic cancer, her death was not necessarily a surprise, but still stung nonetheless. The rest of dinner was spent skimming the endless Facebook tributes written by my legal colleagues. By the time we got on Highway 71 to head back to Louisville, the discussion had already turned to who would take Ginsburg’s still-warm seat on the Supreme Court. Democrats argued that, being so close to an election, a replacement should not be selected and pointed out that Republicans made the same argument several years ago when it was President Obama in the position to appoint a new Justice. The Republicans (i.e.. Mitch McConnell) ignored any claims of hypocrisy on the matter, pledging to blindly do President Trump’s bidding as he had done numerous times prior.
By Sunday, a short list of potential replacements had been made public. Among them was appeals court judge and University of Notre Dame law professor, Amy Coney Barrett. As quickly as her name was uttered, “think pieces” on both sides of the aisle sought to caution against or rally support for the South Bend native. I found myself nodding along with her May 2019 statement that “if we reduce the courts to mere politics, then why do we need them? We already have politicians.” Of course, I was also interested in her stance on sexual assault cases. A short amount of research led me to her involvement in what has been considered “the single most consequential ruling” on due process and collegiate sexual assault.
The Facts
In fall 2015, two Navy ROTC students (Jane and John Doe) at Purdue University, began dating. The couple had consensual sex multiple times between the months of October and December. Over the fall semester, Jane’s behavior became erratic and in December, she attempted suicide in front of John. To get her help, John reported the suicide attempt to a residential assistant. John and Jane soon broke up and Jane began dating someone else.
The following April, perhaps motivated by the University’s Sexual Assault Awareness Month activities, Jane reported that in the past November, she woke up to John groping her over her clothes. She claimed that John admitted to digitally penetrating her while she slept.
John was informed that, despite Jane not filing a formal complaint, the University would be pursuing the allegations. John was suspended from the ROTC program, banned from all buildings where Jane had classes and was required to use different dining halls to avoid contact with Jane. John provided a written response denying all of Jane’s claims, describing evidence that was inconsistent to Jane’s claims, and providing details that suggested that Jane was emotionally unstable, as a possible cause for her accusations.
After a student conduct hearing, John was found guilty by preponderance of the evidence. He would be suspended from the University for one academic year. After his suspension, his return to the university would be dependent on his completion of a bystander intervention program and a meeting with the assistant director of the Center for Advocacy, Response and Education (CARE Center). John would also lose his ROTC scholarship as a result of the hearing.
The Procedure
While this may sound like a cut and dry collegiate sexual assault case on its face, there were numerous issues pointed out in the university’s process of hearing this case that denied John fair treatment (due process). Barrett stated that Purdue’s “process fell short of what even a high school must provide to a student facing a day’s long suspension.”
While John received notification of Jane’s allegations, the University never provided him a copy of the investigative report nor any of the evidence that the decision-makers used to determine his guilt. John was permitted to glance at the report moments before his conduct hearing but, even then, the version he read was heavily redacted. John was shocked to see that the report included a claim that he had previously confessed to Jane’s allegations, a claim he had never seen before. Barrett correctly stated that withholding this information was fundamentally unfair. She would criticize the university’s secretive actions further, stating that “fairness can rarely be obtained by a secret, one-sided determination of facts, decisive of rights.”
John would not be the only involved party that did not read the investigative report. Two of the hearing panel members who ultimately found John guilty admitted to never reading the investigative report, despite having had a copy of it. Barrett’s opinion stated that if the report containing the evidence of the case was not read, then the panel made their decision based only on the accusation. And in a case that amounted to “he said/she said”, doing so would indicate that the panel found Jane to be more credible that John.
Jane’s credibility would never be called into question though, as she did not appear at the hearing. Instead a written statement, penned by the Director of the CARE Center, would be the only statement on behalf of Jane. With Jane not appearing at the hearing, John had no opportunity to cross-examine her. Collegiate sexual assault advocates have long criticized the cross examination process, stating that it causes victims to relive their trauma.
Cross examination however, is widely considered a crowning glory of the trial system when searching for the truth. In instances like this, Universities have employed numerous tactics to work with both parties to mitigate trauma while allowing the cross-examination process to proceed. In my experience as a former hearing board panelist, I have witnessed complainants be allowed to be present at hearings via phone in order avoid physically being in the same space as the respondent. In one case, a physical partition was used to allow both parties to be in the room, without seeing each other. Purdue utilized no such methods to allow for cross-examination, something Barrett referred to as troubling since John identified “impeachable information” in his response; specifically Jane being upset with him for reporting her previous suicide attempt and her behavior after the alleged assault.
John was also denied the ability to call a witness. Had he have been granted the ability to do so, he would have called his roommate who claimed to be present at the time of the alleged assault and would testify that Jane’s rendition of the events were false. Barrett noted that even with a cross examination and the testimony of John’s witness, the panel still may not have wavered on Jane’s credibility. But the panel’s failure to even question Jane or the roommate was unfair to John.
The Ruling
Ultimately, the three-woman appellate court reversed the trial court’s initial decision to dismiss John’s claim that the university had violated Title IX by imposing a punishment based on a sex bias against him. Barrett noted that some circuit courts used formal doctrinal tests to identify general bias in university discipline. These tests required plaintiffs to show they were innocent and wrongly found to have committed the offense (the “erroneous outcome” category. Other tests required a plaintiff to prove that regardless of guilt or innocence, the severity of the penalty was affected by the student’s gender (the “selective enforcement” category). Barrett stated that these tests were not necessary in this case, instead directly asking the question, “do the facts if true, raise a plausible inferences that the university discriminated against John on the basis of sex.”
Barrett stated that the strongest fact in John’s favor was that the university’s Dean of Students and Title IX coordinator credited Jane’s account of the story without ever directly hearing from her. Barrett reiterated that Jane did not even submit her statement in her own words, as her story was told in a letter written by the director of the CARE Center. Speaking of the CARE Center, in the same month as the hearing, the Center shared a story to their Facebook page from The Washington Post, titled “Alcohol isn’t the cause of campus sexual assault. Men are.” Barrett highlighted that the title of this article “could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault.” As the CARE center broadcasted this story to its audience, it is assumed that the Center agrees with the title’s statement; an important assumption given the fact that the director of CARE wrote Jane’s letter which was heavily weighted in the hearing panel’s decision.
Barrett also highlighted the conduct hearing board panelists’ actions as well stating that the panelists had already made up their minds about John’s guilt without reading the investigative report, hearing from John’s witness, or even initially meeting John himself. Barrett closed her opinion by saying that when all of these issues are taken in aggregate, it is plausible that John was denied an educational benefit on the basis of his sex. The case was sent back to district court for a proceeding in line with the appellate court’s opinion.
The Effect
Barrett’s opinion offers a new approach of adjudicating Title IX discrimination claims. Brooklyn College professor K.C. Johnson states that the genius of Barrett’s opinion is that it recognizes that a simple and straightforward approach is the fairest one. President of the Association of Title IX Administrators Brett Sokolow noted that the case was a trendsetter as it would make it easier for accused students to bring lawsuits against universities to a jury trial. Sokolow’s prediction of the case’s trendsetter status appears to be accurate as Barrett’s approach has since been adopted by the 3rd, 8th, 9th, and DC circuit courts.
While sexual assault advocates and due process supporters continue to butt heads over what is fair in campus sexual misconduct cases, accused students are the beneficiaries of not only the adoption of Barrett’s standard setting opinion but also Betsy DeVos’ new Title IX regulations. Advocacy groups such as End Rape on Campus, have argued that new legislation in Title IX rolls back survivor’s rights. Critics claim that the new Title IX regulations demonstrate a willingness to disparage and diminish survivors while discouraging them from reporting. They also argue that it is now more difficult for survivors to seek services and harder for schools to hold alleged perpetrators accountable. Similarly, critics of Barrett’s opinion claim that it “deters colleges and universities from vigorously investigating sexual assault allegations by making it easier for students accused of assault to challenge the handling of their cases.”
On the other hand, due process advocated argue the opposite. Some claim that in efforts to make participating in sexual assault cases less harsh for survivors, colleges have made them nearly impossible for the accused. Some view the student conduct hearing process as a kangaroo court, plagued with unfairness and bias, and applaud Barrett’s opinion as a strike against the charade.
Regardless what side of the fence you sit on, both complainant and respondent deserve a fair hearing. And at least in this case, Barrett delivered on her declaration that “to satisfy the due process clause, a hearing must be a real one, not a sham or a pretense.” A university made a decision about a student’s guilt sans evidence, direct statements from the accuser, witness testimony, or even a fully prepared advisory board. While universities must diligently work to uphold the expectations of Title IX, they must act fairly while doing so.
As for Judge Barrett, whether you see her as the hands down best replacement for Justice Ginsburg, or you think she is a modern day handmaid, the world will know in short order if she will ascend to the country’s highest bench.
