Purdue ruling first in flood of campus sex assault appeals

Purdue University must face an expelled student’s suit claiming his discipline for an alleged sex assault violated his due process rights. (Shutterstock.com photo)

As the number of lawsuits filed by male college students fighting expulsion for alleged sexual assaults grows, the 7th Circuit Court of Appeals has finally weighed in, reviving a case against Purdue University after it found that the Boilermakers’ disciplinary process for determining guilt “fell short of what even a high school must provide a student facing a days-long suspension.”

The case, John Doe v. Purdue University, et al., 17-3565, was brought by a then-freshman at the West Lafayette campus after the university found him guilty of sexually assaulting his former girlfriend and expelled him for one year. Not only did he have to disrupt his education, he also had to resign from the Navy ROTC.

Under the pseudonym John Doe, the student sued Purdue. The Indiana Northern District Court dismissed the case, but the 7th Circuit reversed and remanded, with the unanimous appellate panel concluding Doe had adequately alleged 14th Amendment due process and Title IX violations.

Less than a week after the Purdue ruling was issued, it was cited by at least two other plaintiffs in similar lawsuits against other schools. The unidentified male student in John Doe v. Oberlin College, 19-3342, included it in his brief to the 6th Circuit Court of Appeals. Another John Doe who filed a complaint against Marian University in Wisconsin cited heavily in a court filing to Purdue, calling it a “significant decision regarding Title IX cases.”

KC Johnson, a history professor at Brooklyn College who has extensively studied and written about the rise of Title IX lawsuits against colleges and universities, described Purdue as a “well-written and precise” opinion and believes other federal courts will follow its reasoning.

“My sense is this ruling will be cited in every due process complaint filed by an accused student going forward,” he said.

Biased process?

The Purdue opinion, written by Judge Amy Coney Barrett, faulted the procedure employed by the university to determine whether Doe was guilty of sexual misconduct, as alleged by his ex-girlfriend.

Although Barrett acknowledged the 7th Circuit had to accept Doe’s presentation of this case as accurate, the ruling particularly spotlighted the Advisory Committee on Equity’s decision to accept Jane Doe’s story without ever having her testify or submit a written statement. Instead, a rape counselor relayed the story Jane had told her about the alleged assault by John Doe.

The 7th Circuit also noted John Doe’s allegations that the committee did not give him a copy of the investigator’s report prior to the hearing and, during the hearing, two of the three committee members said they had not read it. Also, the committee refused to take testimony from Doe’s roommate, who maintained the accused was with him at the time of the alleged assault.

Purdue’s counsel, William Kealey, partner at Stuart & Branigin LLP in Lafayette, denied the process favored the accuser. As testament of the university’s fairness, he pointed to the seven Title IX lawsuits against Purdue, of which four were filed by plaintiffs “on the complaining side in the underlying matter, while three were respondents.”

He also reiterated that the 7th Circuit only considered Doe’s account of the facts.

“On the question of how Purdue in fact investigated and decided Jane Doe’s allegation and John Doe’s response, the only story that matters is the whole story, which will look much different when Purdue puts its evidence into the public record,” Kealey wrote in an email.

Doe’s attorney, Philip Byler, senior litigation counsel at Nesenoff & Miltenberg LLP in New York, described Purdue’s procedure as “just awful.” Asserting the university put its finger on the scale in favor of the woman, he said the 7th Circuit agreed by calling for a real hearing and “not a sham one.”

Overall, Byler was pleased with the 7th Circuit’s ruling. He said the opinion will help push back against academic disciplinary procedures by underscoring the need for due process and unbiased sexual assault tribunals.

“The process is hurting people, not protecting people,” he said.

‘Revolutionary’ ruling

Saundra Schuster, attorney and co-founder of the Association of Title IX Administrators, said institutions of higher education are wrestling with how to handle allegations of sexual assault on their campuses.

A letter issued by the U.S. Department of Education in 2001 started the storm, she said. It outlined a formula for how schools could avoid being found deliberately indifferent as they investigated sexual misconduct complaints, but colleges and universities paid no attention.

Things changed in 2011 when the DOE published its “Dear Colleague” letter and the U.S. Department of Justice started filing Title IX actions against colleges and universities. Schools scrambled to stay off the Justice Department’s list, but because the letter was influenced by victims’ advocates, they created systems that found guilt on “pretty skimpy evidence,” Schuster said.

Since then, the accused students, who are predominately men, have filed lawsuits, Schuster said. The 6th Circuit’s opinions have put forth procedures for colleges and universities to follow and the DOE has relaxed some of the provisions in the 2011 letter, but the storm has not abated.

“Today, schools continue to struggle to get it right,” said Schuster, who is also a consultant with The NCHERM Group LLC. “(They struggle) to provide notice, provide appropriate support and provide a process that is fair and nonbiased against any individual.”

Johnson believes through Purdue, the 7th Circuit has contributed important guidance for judicial review of Title IX discrimination claims. The panel rejected the doctrinal tests in Yusuf v. Vassar College, 35 F. 3d, 709, (2nd Cir. 1994), which called for the plaintiff to first show he was innocent and wrongly found to have committed the offense then prove the punishment was based on his gender.

Instead, the appellate court took what Johnson called a “revolutionary” approach to Title IX. He sees the 7th Circuit examining all the evidence holistically to determine if gender bias is plausible.

“It’s a much clearer and really much more intuitive test, but it’s also a much more plaintiff-friendly test,” Johnson said.

The Purdue case has returned to the district court, where it is moving into the discovery phase. Along with reinstating the due process and Title IX claims, the 7th Circuit instructed the lower court to address the issue of having Doe’s record expunged.

Although his one-year suspension is completed, Doe has not re-enrolled in Purdue because, Byler explained, he does not want to return under a cloud. Getting exonerated would allow Doe to return without having to go through the required sensitivity training, and getting an expungement would enable him to try for a Navy career, the attorney said.

However, Kealey pointed out more litigation remains.

“Plaintiffs such as John Doe are arguing what they believe best practices for institutions such as Purdue should be, not what the law specifies today,” he wrote. “While there is a wide spectrum of perspectives and opinions in the media on those practices, in the trial court the focus is limited to the question of compliance with existing law.”•