Judge Barrett on Government II

This series consists of cases brought by or against the government. They do not include criminal cases, lawsuits against law enforcement, lawsuits based on the management of jails and prisons, immigration, or lawsuits against the government in its capacity as an employer. Those lawsuits are (or will be) summarised elsewhere. For further context, please read the overview.

Doe v. Purdue University (2019)

Although Purdue University is technically a private institution, the role of government looms so large in this case that it could only be included here.

Judge Barrett listed this as number four on her list of the ten (actually eleven) most significant cases she ruled on during her time as judge for the Court of Appeals for the 7th Circuit. She summarised the case as follows:

John Doe sued his former university, alleging violations of due process and Title IX in its treatment of a complaint of sexual violence against him. According to John Doe, the University refused to provide him with any of the evidence against him and to allow him to introduce any evidence of his own; denied him the opportunity to cross-examine his accuser; found his accuser credible without talking to her in person; and was blatantly biased against him. The University’s findings led to his suspension from the University and his expulsion from the Navy ROTC program. Writing for the panel, l concluded that John Doe had a protected liberty interest in his freedom to pursue naval service, had adequately alleged that the University used fundamentally unfair procedures in determining his guilt, and had adequately alleged sex bias in his particular case.

[2020 Questionnaire at 40-41]

The facts of this case are too long to properly summarise. Suffice it to say that the plaintiff was a student at Purdue, whose mentally-troubled ex-girlfriend reported to their university that he had sexually-assaulted her. The University initiated charges against him, although his ex had not formally complained. While the complaint was processed, “John Doe” was suspended from the Navy ROTC and barred from many buildings on campus. The investigation itself was a total stitch-up. Mr. Doe was suspended from university for an academic year and kicked out of the Navy ROTC. [2-7] This cost Doe his Navy ROTC scholarship and confounded his plan to serve in the Navy. [12]

Doe sued Purdue University and many of its staff, claiming that they had deprived him of liberty in violation of the Fourteenth Amendment and discriminated against him on the basis of sex in violation of Title IX. Magistrate Judge Paul Cherry dismissed all of his claims with prejudice, on the grounds that: the disciplinary proceedings had deprived Doe of neither liberty nor property; 42 U.S.C. § 1983 did not permit him to bring some of the specific actions he had attempted; he had no standing to seek injunctive relief, because he had not alleged any future harm; and he had not alleged facts that would support a claim of sex discrimination. [7-8 and note 1 on page 7]

Citing 7th Circuit authority, Judge Barrett wrote for the 7th Circuit that university students had a property interest in their education only if they could identify a specific contractual right of which they had been deprived. [9-10] Judge Barrett found that Doe failed to do so. [10-11] Judge Barrett nevertheless opined, citing 7th Circuit authority and Paul v. Davis, that Doe could allege harm to a liberty interest if he alleged stigma and an accompanying change in legal status. [11-12] Purdue argued that Doe had authorised it to release its investigation to the Navy but Doe alleged that he had been obligated to do so. Citing Dupuy v. Samuels, Judge Barrett held that this sufficed to allege stigma. [12-14] Judge Barrett then held that the results of the official adjudication of wrongdoing caused a change in Doe’s legal status, changing him from a reputable student to a suspended one. [14-15] Judge Barrett held that this was sufficient to satisfy the stigma-plus test.

Judge Barrett observed that the process due was higher for violation of behavioural than of academic standards, for university students than for high-school pupils, and for a longer suspension than for a shorter one. Doe was a student who had been suspended for a year as punishment for violation of its code of conduct. Judge Barrett held that this entitled him to strong procedural process. [16-17] Judge Barrett then held that Purdue had failed to satisfy this entitlement in many ways: it had not informed him of the evidence against him; its adjudicators had not properly informed themselves of the facts before reaching a conclusion; they had likewise failed to take the slightest measures to assess the accuser’s credibility; and it had refused to accept Doe’s exculpatory evidence. [17-19] Judge Barrett did not address whether Doe had a right to cross-examine his accuser. [Note 4 on page 18]

 Judge Barrett dismissed his Due Process claims against the individual defendants, however. The claims against the president of Purdue were based solely on the theory that he was liable as supervisor, which was not a valid theory of liability under 42 U.S.C. § 1983. [19] Doe’s remaining claims all failed because of qualified immunity. No relevant case had previously applied the stigma-plus test in the context of university discipline. Judge Barrett held that this meant that the legal rule was not clearly established, which justified judgment on the pleadings in favour of qualified immunity. [19-21]

Judge Barrett also held that Doe did not have standing to seek injunctive relief against the defendants in their official capacities, because he had not alleged a desire to return to Purdue (let alone a fear of repeated investigation) and he could not assert the Fourteenth Amendment rights of other students. Because his complaint had been dismissed without prejudice, he could allege a desire to return to Purdue if he truly held it. [22-23] The exception, which Doe did have standing to request, was that the court enjoin Purdue to expunge the unfavourable finding from Doe’s record. Although Doe had not specifically requested this relief in his complaint, Judge Barrett held that he might be entitled to it and ordered the district court to address the subject on remand. [23-24]

Judge Barrett specifically decided not to delineate the standards under which an education institution discriminated on the basis of sex. [24-25] Judge Barrett found that Doe had alleged sufficient facts to support this claim. Doe had alleged that the Department of Education had threatened to reduce the funding of universities that did not properly investigate sexual assault. Judge Barrett held that this fact gave Purdue an incentive to discriminate against men accused of sexual assault and the adjudicators’ unexplained acceptance of the accusation over Doe’s evidence adequately alleged bias in Doe’s specific case. [26-30] Judge Barrett observed that the inference was strengthened because an involved department of the university’s Facebook posts included a Washington Post article titled “Alcohol isn’t the cause of campus sexual assault. Men are.” [29-30]

Therefore, the case was returned to district court. Doe could seek monetary damages under his theory of sexual discrimination. It remained to be seen what injunctions he would be able to pursue.

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