A Purdue University student was found guilty of sexual assault after a hearing that his anonymous accuser did not even attend. The consequences for the accused student—John Doe—were catastrophic. He lost his ROTC scholarship and the opportunity to serve in the Navy.
When John sued Perdue, a lower court dismissed his case. However, last month, things changed for him. KC Johnson, a champion of due process on campus, recounts what happened in an excellent piece in City Journal:
Reversing a lower court’s dismissal of the anonymous student’s claims against Purdue University, Judge Amy Coney Barrett wrote that it was “plausible” that Purdue’s investigation panel “chose to believe Jane [Doe] because she is a woman and to disbelieve John [Doe] because he is a man.” The court held that the university violated the student’s due process rights and engaged in gender discrimination, forbidden by the Title IX statute.
Since 2011, the federal government has enforced Title IX in cases of campus sexual assault, with nearly 500 accused students having filed similar lawsuits. In John Doe v. Purdue University, the plaintiff relied solely on a statement written on the accuser’s behalf by the campus victims’ rights office. Despite scant evidence, the Title IX investigator deemed the accuser the more credible party—without ever speaking to her.
Judge Barrett took note of the lack of due process:
As Barrett noted, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” Purdue’s investigator declined to speak with Doe’s roommate, who he said would corroborate his version of events. The university then withheld the investigator’s report from Doe, a decision that the court labeled “fundamentally unfair.” Indeed, university officials appeared to have rendered their verdict upon hearing the accusation.
As KC Johnson points out, safeguards for the accused are routine and part of our system of justice. Nobody should be labeled a sex offender without recourse to due process.
Education Secretary Betsy DeVos’ proposed guidelines for dealing with such accusations on campus—which have been attacked by activist groups—include due process protections.
Several lawsuits have been decided recently that uphold the due process rights for accused students. This may signal the return to due process.
However, Johnson notes another troubling development: the politicization of judges who hear the cases when the student who alleges lack of due process sues. Johnson explains:
Democratic legislators, for instance, have attacked the principle of permitting cross-examination in campus investigations in terms that suggest that they would also oppose cross-examination in criminal and civil sexual assault trials.
Since DeVos announced the proposed regulations last November, no noticeable change has occurred with Republican-nominated judges. By contrast, universities have prevailed in 19 of the 26 decisions from Democratic-nominated jurists. This list included two particularly dubious decisions—involving cases at Oberlin College and the University of Arkansas—that appeals courts will hear in the coming year.
Barrett's opinion is encouraging for all who believe in due process.
But it is hard to escape the idea that due process is under attack.