A Federal Court Takes on Title IX

Since the Obama-era Dear Colleague letter, there have been almost 500 lawsuits filed at the state or federal level by accused students. One of the most unfair—in the combination of procedures and outcome—occurred at Purdue University. A lawsuit filed in January 2017 was revived last month by an important opinion issued by the Seventh Circuit. Given its significance, the case is worth a full review.

The Incident

In the fall 2015 semester, a male student that court papers identified as John Doe entered into a sexual relationship with a female student at Purdue University. Doe was attending Purdue on an ROTC scholarship and planned a career in the Navy. The sexual relationship ended in December 2015, when the female student attempted to kill herself, and Doe reported the suicide attempt to Purdue officials.

The following April, the accuser told Purdue’s victim rights office, CARE, that one of the more than a dozen instances in which she’d been with Doe had been non-consensual. A CARE official prepared a statement on her behalf; words written by the accuser were never part of the Purdue case file. CARE itself was hardly a due process champion on campus; on its Facebook page, the office had posted an article claiming that men are responsible for sexual assault, not alcohol.

[After Vilifying Its Basketball Star, How Much Did Yale Have to Pay?]

The CARE statement was forwarded to Purdue dean Katherine Sermersheim, who oversaw an “investigation.” Two investigators spoke with Doe—but never spoke with the accuser. Nor, for reasons Purdue never explained, did they interview Doe’s roommate who Doe said would back up his version of events.

The investigators produced a report for Sermersheim, even though, again, they had never interviewed the accuser. Incredibly, Purdue refused to share the report with Doe. A “meeting” with a three-person panel to discuss the report then took place. The accuser did not appear. After the panel meeting, Sermersheim found Doe guilty. He appealed; the dean denied the appeal, opining, “I find by a preponderance of the evidence that [the accuser] is a credible witness.”

Sermersheim reached her credibility decision without ever speaking to the accuser or reading even one word that the accuser herself had written.

Doe was suspended and lost his ROTC position as a result. To reiterate: this was a process in which Sermersheim based her credibility decision on the hearing panel’s judgment; the panel deemed the accuser credible based on the two investigators’ judgment, and the two investigators based their credibility decision on a statement that the accuser herself hadn’t written.

The District Court

Doe filed a lawsuit. He had bad luck to draw Magistrate Judge Paul Cherry, who sided with Purdue on all counts in a November 2017 ruling. Under existing Seventh Circuit precedent, Cherry maintained, Doe didn’t even have the standing to bring a due process complaint against Purdue. He didn’t explore in any detail how Purdue’s action led to Doe’s losing his ROTC scholarship.

[Yet Another Attack on Due Process by Title IX]

The opinion’s Title IX section provided a sense of why Cherry offered such an unimaginative take on the due process stakes in the case. Its passages featured a veritable whos-who of the most university-friendly opinions in the post-Dear Colleague letter era. Cherry cited Doe v. Baum, which the Sixth Circuit would eventually reverse. He included a long quote from Doe v. Regents without recognizing that the district court, in that case, had reconsidered its university-friendly opinion, and the rhetoric Cherry added was no longer good law.

Cherry repeatedly cited to the district court’s university-friendly opinion in Doe v. Columbia, which by this point had been reversed by the Second Circuit more than a year before. No matter to Cherry—he indicated that the district court’s overturned opinion was “more persuasive.”

In a process in which the accuser’s statement was written by the victims’ rights office, and in which that same office had posted an article saying that “men” are responsible for sexual assault, Cherry ruled that Doe “failed to allege facts to create a plausible inference that gender bias caused the alleged erroneous outcome.”

The Appeal

Doe appealed. He drew an all-female panel in the Seventh Circuit—Amy Coney Barrett, Diane Sykes, and Amy St. Eve. Two exchanges captured Purdue’s difficulty. The first, between Judge Barrett and Purdue’s lawyer, William Kealey, centered on the due process implications of procedures in which the accuser never even produced a statement, much less appeared before a hearing.

The second, between Barrett, Kealey, and Judge Sykes, exposed the improper pleading standard that Magistrate Judge Cherry had applied in his ruling.

It took more than nine months for the court to issue its ruling, written by Judge Barrett. It sided with Doe on both due process and Title IX counts. The due process section particularly focused on the myriad flaws in Purdue’s accumulation and use of evidence. A Title IX adjudication, Barrett wrote, demanded “relatively formal procedures,” and yet “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” The refusal to share with Doe the investigator’s report, according to Barrett, “was itself sufficient to render the process fundamentally unfair.”

The hearing Purdue provided was little more than a “sham.” To Barrett, “it is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane’s credibility,” given that they never heard from her. The conduct was even more “puzzling” given that Doe’s “roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane’s rendition of events was false.”

[Title IX Has a Cross-Examination Crisis]

This section was a devastating rebuke to Purdue’s procedures. And Barrett’s focus on the relationship between due process and evidence—withholding key evidence, failing to pursue exculpatory evidence—was perhaps the clearest of any of the due process rulings since 2011.

The section on Title IX, meanwhile, has the potential to be revolutionary. Until now, courts have considered accused students’ Title IX claims through the precedent laid down in Yusuf v. Vassar College. The most common Yusuf category, erroneous outcome, requires accused students to cast some doubt first on the outcome of their case; and then to produce plausible evidence that gender-based discrimination caused that outcome. In some instances, such as Magistrate Judge Cherry’s opinion, these twin requirements presented a false distinction—evidence suggesting that accused student’s innocence couldn’t really count to demonstrate gender bias.

Barrett saw through this problem, and instead introduced a new standard for (at least) the Seventh Circuit: “We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John ‘on the basis of sex’?” This question allows for a more holistic analysis of the case and likely will be more plaintiff-friendly than the Yusuf test.

Under this standard, Purdue came up well short. Outside pressure from the Dear Colleague letter and an OCR investigation of Purdue. The “strongest” plausible evidence of gender discrimination Doe offered, according to Barrett, was “that Sermersheim chose to credit Jane’s account without hearing directly from her.” The CARE Facebook post also bolstered Doe’s claim of gender bias.

So, Doe won—and obtained one of the two most significant due process rulings since the Dear Colleague letter was issued in 2011. And he’s likely to prevail at summary judgment, at least on the due process count, if Purdue doesn’t settle first. But consider what Purdue’s unfair process has already cost him: three years of his life (and counting) and his ROTC position.

Purdue continues to use the same basic procedure that generated the unfair outcome in Doe’s case.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

10 thoughts on “A Federal Court Takes on Title IX

  1. Sham hearings at Purdue are nothing new. I filed a grievance against my department chair (Health and Kinesiology) about a decade ago over contract tampering impacting a tenure application. Our college ombudsman told me it was the strongest case she had seen, but the grievance went forward when the chair refused to budge. The Vice Provost sent it to the wrong committee, where no formal hearing was held or opportunity for cross-examination was allowed, and the grievance was denied based on a written response from the department chair that was full of easily demonstrable falsehoods. I asked the Vice Provost (who had transferred to become Dean of our college) for a rehearing based on demonstration of the lies in the chair’s response (and gave her documentary evidence, including the department chair’s own e-mails, to prove he had lied to the committee), but that appeal was denied.

  2. Truly appalling considering that Purdue’s president is Mitch Daniels, former US rep and governor of Indiana, purportedly a conservative Republican. If all this didn’t take place on his watch, then quite a surprise that he hasn’t taken measure to keep it from happening again.

  3. The other question is the extent to which ROTC cadets and veterans are (or aren’t) treated fairly by left-leaning bureaucrats who often have a visceral dislike for the military, treating those so associated with thinly-veiled contempt.

    It isn’t just with this Title IX stuff — I’m reminded of a ROTC cadet accused by a graduate TA of cheating because of a glitch in the optical scanner, which at the time also had a 5% error rate. While one phone call to anyone who knew anything about the system then in use would have been the end of it, it was a similar charade.

    What saved him was the integrity of the Electrical Engineering Professor they brought in as their expert witness — after hearing their allegations, she turned around and said “you’ve have got to be kidding”, pointed out how it would be impossible for her to do what they were accusing him of having done, and concluded how she was proud to live in America where due process protects those who are falsely accused of things they hadn’t done.

    I don’t think it would have happened if he hadn’t been Army ROTC…

  4. There are three aspects of this case which make it even more interesting — and more disturbing.

    First, Purdue has a Behavioral Intervention Team which almost certainly would have become involved here upon John’s reporting Jane’s suicide attempt — BITs are the shadowy top-down star chambers which decide the fate of students (and sometimes faculty) in absentia, with everything that follows being merely a pro-forma show trial.

    Whenever there is a jaw-dropping lack of due process, one must wonder if it is because the BIT has already determined what the outcome shall be, the folks at the top of the “silos” have spoken — all the administrators involved know this but can’t say it and hence are just trying to expedite the paperwork toward a predetermined end.

    Second, even if Jane’s two prior suicide attempts in high school hadn’t put her on their radar, her reported on-campus attempt would definitely have brought her to the attention of the Purdue Mental Health folks — the Director of which is usually a member of the BIT.

    What the Mental Health people would have done was mandate that she accept their “treatment” if she didn’t want to be kicked out of school herself, and/or involuntarily committed to a mental hospital. Who knows, they may have already involuntarily committed her once already — colleges love to do that — and I’m actually surprised that she was allowed to return the following spring after the incident up on the ledge.

    In any case, her testimony gets awfully close to what lawyers refer to as a witness being told “how not only to sing, but also to compose.” In addition to the vulnerable nature of the therapist/patient relationship, she’s clearly under a lot of pressure to say what the BIT wants her to say — and who can really blame her?

    Another thing which comes to play here is that FERPA, not HIPPA, applies to student medical records, including mental health records. Hence unless there is a more restrictive Indiana law, her mental health records can be shared within the administration, but not outside it. This might explain why John was not able to see the report — had it been information from Jane’s academic records (including her mental health ones) it would have been a FERPA violation to let John see it — but not any Purdue administrator. I ran into something similar advising undergraduates at UMass Amherst and the truly Kafkaesque situation of students being forced to defend themselves without any knowledge of what it was they were accused of having done.

    Third is the ROTC aspect of this. To be a ROTC “Scholarship” student means that the US Navy is paying for his tuition, costs, & living expenses — and that he owes them 5 years active duty upon graduation & commission. More importantly, a“minimum of two years active enlisted service or recoupment of all tuition dollars paid may be required for midshipmen who disenroll or are disenrolled from the Naval ROTC Scholarship Program for academic or personal reasons after the first day of their sophomore year.”

    Hence he’s not only kicked out of Purdue but looking at 2 years as an E-1 Seaman Recruit.

    On the other hand, the allegation that the ROTC commander was given a document stating that John Doe had confessed when he hadn’t is quite interesting because that’s lying to a Federal Official — something that people can and do go to jail for. Hence it’s not just a student and his money but the US Navy and USN’s money which is involved here — and should Purdue be found in the wrong here, that could be quite interesting.

    There is also a reference in the court pleading to Jane Doe saying that she wasn’t sure she wanted to be “in the Navy anymore.” Is she also a N-ROTC Cadet?!?

    But the bottom line here is that this has BIT written all though it — and that’s a problem…

    1. Let me speak as a former Purdue professor AND a health policy specialist.

      According to Indiana Public Records Act, the medical data can be shared with the administration for its legitimate roles as a state agency. This isn’t well understood – I had ISDH pay Purdue for a $75K research contract to analyze the impact of skill deficiencies in the rural EMS workforce on cardiac outcomes, but an attorney refused to allow access to state EMS run records because she misread the act, applying a section related to *public* release of confidential medical records instead of a preceding section related to use by state agencies (which both Purdue and ISDH were). In effect, we were paid to analyze data that we were not given access to.

      HIPAA still applies, however, and there are serious questions as to whether PUSH would be allowed to share a patient’s identifiable medical records for non-medically necessary reasons, to individuals other than the parent or guardian of a minor, or for reasons unrelated to payment for services. FERPA does NOT preempt HIPAA! The two laws exist side-by-side.

      1. While not quite written in English, see: https://www.hhs.gov/hipaa/for-professionals/faq/518/does-ferpa-or-hipaa-apply-to-records-on-students-at-health-clinics/index.html

        Thus, for example, postsecondary institutions that are subject to both HIPAA and FERPA and that operate clinics open to staff, or the public, or both (including family members of students) are required to comply with FERPA with respect to the health records of their student patients, and with the HIPAA Privacy Rule with respect to the health records of their nonstudent patients.

        http://www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/adminsimpregtext.pdf
        (2) Protected health information excludes individually identifiable health information in:
        (i) Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
        (ii) Records described at 20 U.S.C. 1232g(a)(4)(B)(iv)
        http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/hipaaferpajointguide.pdf

        Are all student records maintained by a health clinic run by a postsecondary
        institution considered “treatment records” under FERPA?

        Not all records on eligible students that are maintained by a college- or university-run health clinic are treatment records under FERPA because many such records are not made, maintained, or used only in connection with the treatment of a student. For example, billing records that a college- or university-run health clinic maintains on a student are “education records” under FERPA, the disclosure of which would require prior written consent from the eligible student unless an exception applies. See 34 CFR § 99.30. In addition, records relating to treatment that are shared with persons other than professionals providing treatment to the student are “education records” under FERPA. Thus, to the extent a health clinic has shared a student’s treatment information with persons and for purposes other than for treatment, such information is an “education record,” not a treatment record under FERPA.

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