Amy Coney Barrett Strikes a Blow against Campus Kangaroo Courts

By David French

Tuesday, July 02, 2019

Whenever I read a court opinion describing a campus sexual-assault proceeding, I routinely find myself shocked at the staggering unfairness and ridiculous bias of campus kangaroo courts. Driven by the need to find more men guilty — and rationalized by a #BelieveWomen ideology — campus administrators have systematically discarded every fundamental notion of due process in American law.

Across the nation, courts on the right and on the left are saying no. They’re blocking biased sexual-assault adjudications, protecting basic fairness, and restoring a degree of sanity to colleges’ procedures. On Friday it was the turn of the Seventh Circuit Court of Appeals to protect the Fourteenth Amendment, and an all-woman panel, led by Judge Amy Coney Barrett, established a precedent that could be used against woke college administrators nationwide.

The facts of the case are extraordinary. After a female college student accused her ex-boyfriend of groping her in her sleep, Purdue University conducted an investigation and adjudication so amateurish and biased that it’s frankly difficult to imagine that human adults could believe it was fair or adequate. The plaintiff (John Doe) alleged that he was “not provided with any of the evidence on which decisionmakers relied in determining his guilt and punishment,” his ex-girlfriend didn’t even appear before the hearing committee, he had “no opportunity to cross-examine” his accuser, the committee found his accuser credible even though it did not talk to her in person, the accuser did not even write her own statement or provide a sworn allegation, and the committee did not allow the plaintiff “to present any evidence, including witnesses.”

After that farce of a process, Purdue found the student guilty and suspended him for a year. The suspension meant the automatic loss of the student’s Navy ROTC scholarship and expulsion from the ROTC program. Incredibly, the lower court dismissed the student’s claims. He appealed to the Seventh Circuit, and a unanimous panel resurrected his lawsuit.

Judge Barrett was unsparing in her criticism of the university’s procedures. In perhaps the most telling critique, she noted that Purdue’s process, with its permanent, devastating consequences for the student’s career, “fell short of what even a high school must provide to a student facing a days-long suspension.” Withholding evidence from the plaintiff by itself was sufficient to render the process unfair. So was the failure to provide any means of meaningfully examining the accuser’s credibility. As Barrett wrote, the evidence suggests that the committee “decided that John was guilty based on the accusation rather than the evidence.”

But that’s not the truly important part of the opinion. The plaintiff alleged that Purdue’s procedures were so inadequate and so engineered to obtain guilty findings that they violate Title IX by discriminating against men. The Seventh Circuit found that the plaintiff did present enough evidence of anti-male discrimination to proceed with his claim, and part of that evidence was the university’s own wokeness.

The decision-makers adopted a formal #BelieveWomen approach, deciding that the accuser was credible without actually hearing from her. Judge Barrett found this “perplexing” and concluded that “it is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man.” Barrett continued:

The plausibility of that inference is strengthened by a post that CARE [the university center dedicated to supporting victims of sexual assault] 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. And it is pertinent here that Bloom, CARE’s director, wrote the letter regarding Jane to which Sermersheim apparently gave significant weight.

To put it bluntly, Judge Barrett’s opinion is a warning shot to campuses in her federal circuit — and, through persuasive authority, to campuses across the nation. Universities mix ideology and adjudication at their own peril. Yet mixing ideology and adjudication is the virtual mission statement of campus Title IX offices. Plaintiffs hunting for evidence of official hostility against men will find a target-rich environment.

The Obama administration’s mandatory rejection of due process — and the academy’s wholesale embrace of fundamentally anti-male ideology — has resulted in one of the more dispiriting illiberal chapters in recent American history. But judicial defense of due process has been heartening to see. In fact, the judicial response to college misconduct is even more consequential than the Trump administration’s (admirable) rejection of Obama’s guidance. After all, judicial opinions endure through any change in administrations and will bind universities long after Trump is gone. And now one of the judiciary’s brightest new stars has made her own contribution to the constitutional order. Plaintiffs should seize this opportunity to bury campus bias once and for all.