Seventh Circuit Court of Appeals Issues Ruling in Purdue Title IX Case

Timothy M. Burke, Manley Burke LPA, tburke@manleyburke.com

The Seventh Circuit United States Court of Appeals issued a decision on June 28, 2019, that closely considered the issue of due process rights in state college disciplinary proceedings. The court also considered what it required to at least get a Title IX claim to trial when a student who has been expelled for alleged sexual misconduct claims that decision resulted from gender discrimination.

John Doe filed suit against Purdue University and half a dozen of its administrators after he was found guilty of sexual violence, suspended for an academic year, and had substantial conditions placed on his readmission. That decision was even more severe because as a result of it, he was expelled from the Navy ROTC program, which terminated his scholarship and his planned career.

In the trial court, Purdue and its officials had filed a successful Motion to Dismiss in front of the federal magistrate judge, and it was from that decision that John Doe filed his appeal. The Court of Appeals was careful to point out that the facts it relied on in reaching its decision were the facts as pled in John Doe’s complaint. For the purpose of determining whether or not the magistrate judge’s decision was correct, the Court of Appeals was obligated to consider as true, the facts alleged in Doe’s complaint.

The facts as stated in the complaint included that John Doe and Jane Doe, the alleged victim of the assault, were both students in the Navy ROTC program and dated through the fall of 2015. They had consensual sexual intercourse fifteen to twenty times. In December, Jane attempted suicide in John’s presence. While they continued dating, they no longer had sex. In January 2016, in an effort to get help for Jane, John reported the attempted suicide to university officials, which upset Jane. Three months later during April’s sexual assault awareness month, Jane became one of five students who responded to programs urging that sexual assaults be reported. Jane alleged that in November 2015, while sleeping with John in his room, she awoke to find John groping her over her clothes without consent. Apparently, she also reported that John told her he had previously digitally penetrated her while the two were sleeping in Jane’s room.

Even though Jane did not file a formal complaint, Purdue’s Dean of Students, also a Title IX coordinator, sent a letter to John advising him that the University was pursuing charges against him. Because of the letter, John was suspended from the Navy ROTC program, and from all buildings where Jane had classes and barred from eating in his usual dining hall because Jane also used it. John denied all the charges against him. John appeared before a three-person panel of Purdue’s Advisory Committee on Equity. The University failed to provide him with a copy of the investigatory report which had been given to the panel. John did learn that the investigatory report falsely stated that he had confessed to Jane’s allegations.

His hearing before the advisory committee lasted about thirty minutes. Jane did not appear before the panel. She submitted no written statement, either sworn or otherwise. The panel refused John permission to present witnesses, both character witnesses and one witness who would have disputed facts in Jane’s accusations. The Dean of Students who chaired the committee’s hearing, ultimately sent John a letter informing him that he had been found guilty by preponderance of evidence and he was therefore suspended for an academic year.

John appealed the decision to Purdue’s Vice President for Ethics and Compliance. The vice president instructed the Dean of Students to identify the factual basis for her decision. In responding to the Vice President, the Dean restated Jane’s claims and concluded, “I find preponderance of the evidence that [John Doe] is not a credible witness. I find by preponderance of the evidence that [Jane Doe] is a credible witness.” [1] The Dean reached that conclusion in spite of the fact that Jane Doe never testified before the hearing panel.

The Court of Appeals first considered whether John Doe had due process rights that were violated. The court noted that “the due process clause is not a general fairness guarantee. Its protections kicks in only when a when a state actor deprives someone of life, liberty or property.” [2] The court went on to consider whether John Doe had a property or a liberty interest of which he was deprived. The court noted that, in several prior cases, the Seventh Circuit Court of Appeals had determined that a college education “is not” property “in the usual sense of the word.” In a footnote, the court acknowledged that three other Circuit Courts had recognized a generalized property interest in higher education; two other Circuits assumed that was the case without deciding that. Six circuits require a state-specific inquiry to determine whether a property interest exists, the Seventh Circut being one of them.

The court conceded that a property interest could be found in a contract between the student and the University. John Doe had failed in his complaint to allege any such contract or to point to any factual promise that Purdue allegedly broke. While finding that no articulated property interest had been harmed – a somewhat surprising result given Doe lost his Navy scholarship – the court went on to consider whether a liberty interest had been violated. Here, John Doe argued that because his chance of a naval career had been destroyed by the stigma of the University’s finding, he had demonstrated the deprivation of a protected liberty interest that should not be taken away in the absence of procedural due process.

The court ultimately determined that, on this issue, John Doe was right. He met the required stigma-plus test to establish a violation of his liberty interest. Purdue’s decision did create a stigma and it did change his legal status. He went from a full-time student in good standing to one suspended for a year. It caused his expulsion from the Navy ROTC program and loss of his scholarship.

The question then became whether Purdue had engaged in a fundamentally fair process in making that determination. The court acknowledged the Supreme Court decision in Goss v. Lopez, 419 U.S. 565 (1975), in which the high court noted that significant requirements applied when a state attempts to take away rights protected by the due process clause. According to the Goss court, a state “may not withdraw the right protected on grounds of misconduct absent fundamentally fair procedures to determine whether misconduct has occurred.”

The Seventh Circuit concluded that John Doe was entitled to relatively formal procedures because suspension for a year is a high punishment. The court was critical of Purdue’s conduct when it failed to disclose evidence to John, which was ultimaely used to determine his guilt. Two of the three panel members did not even read the investigative report. And as the court put it, it was particularly concerning that the Dean and the Committee “concluded that Jane was the more credible witness – in fact, that she was credible – without ever speaking to her.” The court noted that John had facts he was prohibited from presenting which may have undermined the written summary of Jane’s position that was presented and written, not by Jane, but by the University administrator.

On the other hand, the court was not impressed by Doe’s argument that the Dean played a role in both the investigation and the adjudication of his case. Other courts have been critical of allowing university administrators to serve as both investigator and judge.

The failure of Purdue and its officials to provide a fundamentally fair process did not necessarily save the day for Doe because the court then turned to the question of qualified immunity. Qualified immunity generally applies to public officials who, in fulfilling their duties, do so without violating “clearly-established statutory or constitutional rights of which a reasonable person would have known.” [3] Because the stigma-plus test for the deprivation of a liberty interest had never before been applied in a university setting, the court concluded that a reasonable university officer “would not have known at the time of John’s proceedings that her actions violated the Fourteenth Amendment.” [4] As a result, the court upheld the dismissal of John’s individual claims against the University administrators. The court also upheld the decision which dismissed John Doe’s claims for injunctive relief, which asked that the University be enjoined from violating the Fourteenth Amendment, agreeing with the magistrate that Doe did not have standing to bring those claims for others who may face disciplinary proceedings.

The court, however, did look favorably on Doe’s claim for an injunction requiring university officials to expunge the finding of guilt from his disciplinary record. The court instructed that when this case was remanded to the trial court, the trial court must address the issue of expungement.

Finally, the court turned to Doe’s Title IX claims. Doe argued that the federal government’s Dear Colleague letter of 2011 and the multitude of investigations, including two against Purdue, into potential Title IX violations, had made Purdue hyper-reactive to claims that male students had engaged in sexual assaults. As in the case of Doe v. Rhodes College, reported elsewhere in this issue of Fraternal Law, the court noted that Title IX cases are sometimes heard on the theory of erroneous outcome. The court pointed out there were several other theories including “Selective Enforcement,” “Deliberate Indifference,” and “Archaic Assumptions” which some courts have looked at favorably in considering Tile IX gender bias claims. The Seventh Circuit, however, in John Doe’s case simplified that by stating “We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John “on the basis of sex?” The court was clear in stating that the Dear Colleague Letter, “standing alone, is obviously not enough to get John over the plausibility line.” However, the court noted that John had alleged facts in addition to the Dear Colleague letter which suggested that gender discrimination may have been involved noting, “the strongest one being that Sermersheim [the Dean] chose to credit Jane’s account without hearing directly from her.” Based on the multiple facts which the court at this point in the case had to consider to be true, the court concluded that it is plausible [the Dean] and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. But the court went on to warn that:“To be sure, John may face problems of proof and the fact-finder might not buy the inferences that he is selling. But his claims should have made it past the pleading stage, so we reverse the magistrate judge’s premature dismissal of it.”

Both this case and Doe v. Rhodes College continue what is becoming a well-established trend of courts recognizing that even those who stand accused of sexual misconduct are entitled to a fair proceeding in determining if they are guilty. Defining how extensive the due process rights of an accused are in a campus disciplinary process remains difficult to articulate with precision.

[1] Doe v. Purdue Univ., 928 F.3d 652, 658 (7th Cir. 2019).

[2] Id. at 659.

[3] Id. at 665 (quoting Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016)).

[4] Purdue Univ., 928 F.3d at 666.