What is Judge Amy Coney Barrett’s position on sexual misconduct in school under Title IX?
While the late Justice Ruth Bader Ginsburg had a very clear judicial project that welcomed everyone under that law, including men responding to sexual misconduct allegations in college (see, https://www.studentmisconduct.com/news/in-honor-of-justice-ruth-bader-ginsburg ), it turns out that her likely successor, Judge Amy Barrett, whose judicial project may not be as clear, actually wrote one of the more cutting edge opinions on student misconduct, Doe v. Purdue, and in it she protected the male respondent’s rights much in the same manner that Justice Ginsburg would have.
The facts in Doe v. Purdue are typical of many sexual misconduct situations:
As John Doe states his story for the court, he and Jane Doe studied in Purdue University’s Navy ROTC program when they started dating in the fall of 2015. They had consensual sex between 15 and 20 times between October and December that year. In December, Jane attempted suicide in front of John and they stopped dating after he later reported the attempt to the university. A few months later, during the university’s Sexual Assault Awareness Month, Jane accused John of sexually assaulting her on two occasions. While many would immediately question or at least Jane’s mental health in general, Purdue opted to expel John. Purdue’s Title IX Dean did not even talk to Jane.
On that version of the facts Judge Barrett said that because “The case against him boiled down to a ‘he said/she said’ — Purdue had to decide whether to believe John or Jane,” and to have picked her over him, without talking to her, or letting him cross-examine her, is nothing but Purdue’s Title IX Dean’s bias against John. And we agree. Judge Barrett’s decision stands in the same family of thought informing Justice Ginsburg’s views, as well as the thoughts in other leading cases that had previously protected male respondents of sexual misconduct, particularly Doe v. Baum, and Doe v. Columbia. Recently, this legal trend recognizing male-bias in a school Title IX dean who does not treat the respondent as she treats the defendant, as Judge Barrett found in Purdue, influenced the latest, and best appellate court decision protecting the rights of men responding to sexual misconduct in school, the 3rd Circuit’s Doe v. USciences opinion. (See, https://www.studentmisconduct.com/news/after-doe-v-university-of-the-sciences-what-rights-do-men-responding-to-sexual-misconduct-in-pennsylvania-new-jersey-or-delaware-colleges-and-universities-have ).
Bottom line, if the school where a man has been accused of sexual misconduct is in Pennsylvania, New Jersey, Delaware, Illinois, Indiana, Wisconsin, Kentucky, Michigan and Ohio, thanks to all these judges, that man has more rights and a better chance to prove his innocence. At the very least the school has to treat the man as well as it treats the woman and this includes the man’s right to interview the woman, to test her story. To be clear: That man has just about as many rights as any defendant has in a civil legal process. These are not pro-male rights; they are, in fact, barely minimum human rights. These are rights that do not, in any way, let a guilty man or a lying woman get away with it. Thus they make sense as Justice Ginsburg identified in the first place.
Of course it’s impossible with one data point, the Purdue opinion, to say anything else or meaningful about Judge Barrett’s judicial project. Obviously she has one for otherwise she’d be working at a global law firm and raking in the big bucks. But what else her project involves remains to be seen. It is also obviously impossible for anyone — liberal or conservative — to go and sit in the Supreme Court and claim that they are just going to call balls and strikes. That is not what the Supreme Court does. The Supreme Court decides when two lower courts already counted the balls and strikes and came out with different winners. Making that decision is making policy and it is inherent to the Court’s role in governing the US. Make no mistake, Judge Barrett will govern. In terms of Title IX policy her next likely ruling will involve the question of whether a school is liable for sexual misconduct that happens before the woman complains, or only for sexual misconduct that happens after she complains. That case, Kollaritsch, will probably go for the school’s point that they can only be liable after they know, not for what happens before. That cert petition is here: https://www.supremecourt.gov/DocketPDF/20/20-10/146902/20200702164751173_Kollaritsch%20Petition%20FINAL%20without%20Appendix%20070220.pdf
Moving forward, many other decisions on the nation’s policy will seem outrageous in the context of a Supreme Court that will have an ideological bent that does not correspond with Constitutional notions that encourage regulation and fairness. But at least in terms of this black swan, which is our judicial project — making sure that schools dealing men responding to sexual misconduct treat them like humans — the future looks promising.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather, suggestions on how to protect your family’s college students in this Coronavirus national emergency. If you’re in this situation, in any way, consult a lawyer now.
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