The allegory of the Emperor’s New Clothes has such ubiquitous application these days as to be rendered trite. Yet, its message still matters. When used in favor of the loudest screamers on social media, it gets applause, but that’s not really the message. It’s safe and easy to agree with all your pals. It’s hard, almost impossible, to say out loud what the passionate masses don’t want to hear.
The case involved a relationship between two Purdue University students that ended after the male student reported his girlfriend’s suicide attempt to school officials. Four months later, the female student claimed that before they broke up, her boyfriend had sexually assaulted her as she slept. She had a campus victims’ rights group write her statement and then declined to appear at the Title IX hearing. A three-member university panel nonetheless found her claims credible, despite never hearing directly from her.
To any lawyer who chooses not to bury his head in self-delusion, this wholesale lack of process is mind-blowing. But as they say when selling late-night laundry detergent, there’s more.
The panelists based their decision on an investigative report that the accused student said university officials refused to let him see. Their decision cost the accused student his ROTC scholarship and a potential career in the Navy.
Nobody can defend against allegations they never see. A slam dunk win, you say? Nope. Title IX cases have a quirk. There are two hurdles that have prevented the accused who were denied due process, from notice of accusations, to opportunity to defend, to the meat and potatoes procedures of challenging an accusation, cross-examination from getting over a motion to dismiss. No matter how awful the process was, even when the defendant is “railroaded,” it is still incumbent on the accused to “plausibly allege” that the reason for this was sex discrimination.
Universities had a two-pronged argument that worked exceptionally well to prevent male students, whether innocent or guilty or somewhere in between, from obtaining relief for the conceded due process denials they endured. The argument begins with the proposition that colleges didn’t manufacture these kangaroo court procedures because they were anti-male, but because they were pro-victim. Sure, this was biased, as they took the position that they favored the “survivor” over the rapist, whether or not a rape occurred or the accused was the bad guy in whatever happened. But Title IX doesn’t prohibit pro-victim discrimination. It prohibits sex discrimination. So while this might be discrimination, it was entirely lawful discrimination.
The second prong was that it wasn’t the universities’ fault that males tended to be rapists rather than women. So what if the accuseds are almost invariably male? That’s because males are just rapey, and, well, it is what it is.
In case after case, argument after argument, evidence was proffered that the individuals involved, their training materials, their campus incentives and their pecuniary interests, all manifested the fact that this argument, facile on its face, was a big old lie. This was all about women being victims and men being rapists. That’s what it was always about, except that colleges denied it in court while they pounded the crap out of it at campus rallies, mandatory sexual misconduct training, and pervasive climate control. It was downright goofy that the only place this wasn’t screamed from the rooftops was in court.
Three female judges sitting on the Seventh Circuit Court of Appeals refused to pretend that the Emperor wasn’t naked. One judge wrote the 30-page unanimous opinion. Since it came out, three other circuits have adopted it. The judge who signed off on Doe v. Purdue was Amy Coney Barrett.
The opinion was noteworthy for three reasons. First, it devised a new standard—both simpler and fairer—for courts to evaluate Title IX claims filed by accused students. The previous standard, offered by the Second Circuit in 1994, required accused students to jump through doctrinal hoops to raise a plausible claim. Courts would first establish whether a wrongful finding of guilt might have occurred, then search for sex discrimination elsewhere in the process, rather than evaluating the college’s adjudication as a whole.
Judge Barrett’s opinion dispensed with all this. Instead, she returned to the text of the statute, and instructed courts to ask a simple question: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the accused student] ‘on the basis of sex’?” The Purdue panel answered that question in the affirmative, citing the combination of the student’s likely innocence, the university’s procedural irregularities, and possible sex bias by the organization that drafted the accuser’s statement.
When KC puts it so succinctly, it seems painfully obvious. Of course no college Title IX investigator announced to the accused male student, “While you probably didn’t do anything wrong, we’re still going to expel you because you’re a guy and we have to believe survivors, no matter how ridiculous their complaint.” Instead, one is left to amass the totality of the evidence, from the preference to railroad male students, to the investigator’s speeches at rallies about how it’s up to men to stop raping women, to the colleges getting slammed by activists in the local paper for failing to support women’s right to change their mind about consent years later.
But Judge Barrett not only showed a level of clarity and bravery in rejecting the sophist’s excuse. She showed judicial humility in not going any further than the rationale required.
The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint.
As KC notes in closing, there is little more one could ask of a court than to be both fair and restrained. Judge Barrett said aloud that the emperor was naked when no one else was willing to do so. There was no call to discuss his endowment. You can’t ask more of a judge.
*It cannot be emphasized enough how valuable a role the indomitable KC Johnson has played in being the fair, honest and accurate chronicler of Title IX sex cases, just as he was with the Duke Lacrosse debacle.