3rd Circuit on Title IX: Not Such A Case

In a stunning unanimous decision, the Third Circuit Court of Appeals did three critical things in the first ruling following the issuance of the new Title IX regs. It rejected the single investigator model of sexual misconduct adjudication. It held that the promise of fairness by a private college, in this case Philadelphia’s University of Science, required due process in the form of a live hearing and cross-examination.

And most importantly, it rejected the argument that this was some sort of pseudo-educational act on the part of the school, and the courts should therefore defer to the school’s educational judgment. In so doing, the circuit panel said out loud that this was not comparable to a college adjudicating plagiarism, or some traditional educational function, but a school turning itself into a criminal tribunal imposing consequences that are “dire and permanent.”

Doe’s allegations of unfairness arise in a breach-ofcontract claim between two private parties—a private university and one of its students. Under those circumstances, courts are sometimes chary about reviewing too closely the manner in which a private university chooses to  investigate and discipline its students. That is especially appropriate for matters uniquely within the institution’s province, such as academic integrity or faculty development and discipline.

This is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities. Yet accused “students have a substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct,” Baum, 903 F.3d at 582, because the consequences are potentially dire and permanent: “[a] finding of responsibility for a sexual offense can have a ‘lasting impact’ on a student’s personal life, in addition to his ‘educational and employment opportunities,’ especially when the disciplinary action involves a long-term suspension.”

For years, the argument propounded by advocates was that these campus sex tribunals aren’t “criminal trials,” they can’t put any male student in prison, and so they are unworthy of serious due process protections. Indeed, they trivialize the consequences for the accused by juxtaposing the consequences of a “conviction” with the trauma of “survivors,” the latter being so much more serious and tragic that the former can’t compare. That the accuser may not be a “survivor” if the accusation is false, and their argument begs the question, eludes many. That the going to prison, serious though it is, isn’t the only consequence of significance also eludes them.

KC Johnson and FIRE’s Samantha Harris provide a thorough rundown the decision at NRO. The short of it is that two accusers, sorority sisters, accuse the plaintiff of rape well after casual sex occurred. The plaintiff argued it was consensual. The single investigator backed the women. UScience defended itself by arguing that right or wrong, the court should defer to its educational judgment.

In oral argument before a three-judge panel, the university’s lawyer cited the efficiency of the single-investigator model. USciences also received support from 19 law professors, whose amicus brief championed a “public health–based approach” that would prevent accused students from defending themselves at a hearing.

What’s meant by the public health approach is that these determinations shouldn’t be viewed as an adversarial proceeding, but rather a holistic journey of healing best achieved through an inquisition. The Third Circuit wasn’t buying.

The court strongly disagreed. Judge David Porter, writing for the court, found “that USciences’s contractual promises of ‘fair’ and ‘equitable’ treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses — including his or her accusers.” With this holding, the Third Circuit joined California and the four Midwestern states of the Sixth Circuit in recognizing the centrality of cross-examination to fairly deciding he-said/she-said, credibility-based cases. The First Circuit, based in New England, also has held that “due process in the university disciplinary setting requires some opportunity for real-time cross-examination, even if only through a hearing panel.”

The court recognized that schools had strayed from their educational mission into the realm of creating a subconstitutional criminal justice system, imposing the harshest penalties it could without the protections those penalties required, under the guise of promoting the civil rights of women to be free of sexual harassment and at the expense of male students whose punishment was merely the unfortunate but necessary consequence. If colleges could be so cavalier about other issues, like cheating on a test or plaigarism, and sought to promote a social good, like the civil rights of its female students, what business did a court have in second guessing their decisions?

As USciences did here, universities often urge the judge not to second-guess their guilty findings, claiming that they’re acting in an “educational” capacity. Judge Porter acknowledged the wisdom of this approach in evaluating academic disciplinary matters such as student plagiarism or faculty promotion. But, he pointedly noted, “this is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.” The opinion recognized that, in the end, basic procedural protections provide the surest path to fairness given the life-altering consequences of a wrongful finding of guilt.

As colleges, and their activist enablers/detractors, have long argued, by wrapping up Title IX sex tribunals in the pretty ribbons of educational sophistry, they aren’t out to convict and punish the perpetrators but merely empower the victims. Of course, punishing the male students happens because the system was designed to achieve that specific end. After all, how else to assure that the feelings of accusers are protected at all costs? The Third Circuit pulled on an end of that ribbon and it unraveled.

That courts should give more deference to university discipline on cheating allegations than when schools adjudicate quasi-criminal allegations might seem like common sense. So, too, the idea that before deciding that one of its students is a sex criminal, the university should allow the student a chance for meaningful self-defense. In this respect, courts and federal regulators are stepping up where colleges and universities have fallen short.

Sex tribunals aren’t the usual educational issues that arise on campus, and expulsion, forfeiture of years of tuition and opportunity costs, and a future branded as a rapist are criminal consequences. UScience and 19 law profs made their pitch and the court rejected it. What the court did not reject was the process reflected in the new Title IX regs, even for a private university, because a subconstitutional quasi-criminal proceeding is “not such a case” as any other ordinary college disciplinary issue.

3 thoughts on “3rd Circuit on Title IX: Not Such A Case

  1. Leon

    “Expulsion, forfeiture of years of tuition and opportunity costs” are all sanctions similar to those state courts impose on civil defendants. It’s confusing why people with law degrees would imply sexual assault is inherently and exclusively criminal. Otherwise why not refer to it as “tortious” as well?

    1. SHG Post author

      There’s usually a reason why people trained and knowledgeable about a subject tend not to see it the way blithering idiots do. First, you’re dead wrong. Civil actions produce damages, not forfeitures wholly unrelated to damages. Second, civil actions have extensive due process, multiple processes of discovery. Third, the parties aren’t the institution v. a college sophomore left to his own devices, but pltf v. deft, both represented by counsel and protected by a due process overseen by a competent judge and selected jury.

      Your confusion is unsurprising; you lack the capacity to be anything but confused.

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