Judge Amy Coney Barrett—President Donald Trump’s pick to replace the late Ruth Bader Ginsburg as associate justice on the U.S. Supreme Court—will soon face politically-charged confirmation hearings in the U.S. Senate.
The sports world should be watching. College athletes, according to a 2018 study of Title IX complaints by ESPN’s Outside The Lines, are “three times more likely than other students to be accused of sexual misconduct or domestic violence in complaints made at Power 5 conference schools.”
Alterations to Title IX procedures impact how college athletic departments evaluate the eligibility of accused athletes. To that point, universities’ eligibility for certain types of federal funding is contingent on compliance. Judge Barrett’s rebuke of Purdue for denying an accused student basic protections and her insistence on due process in conduct matters impact university procedures for civil and criminal matters involving students—including athletes and their accusers.
Doe was decided last year by a panel of three federal appeals judges—Judges Barrett, Diane Sykes and Amy St. Eve. It involved “John” and “Jane”, real names for whom the court redacted. Months after their relationship ended, Jane accused John of transgressions that John denied. The legal controversy stemmed from the manner in which Purdue’s Title IX staff investigated and whether John was afforded a credible opportunity to defend himself.
The school asked John to appear before three administrators who served on a conduct panel. John was barred from reviewing the investigative report; scrutinizing alleged evidence; or having witnesses speak on his behalf. He was instead granted limited access to a redacted document that contained a false confession and omitted key facts. Meanwhile, two of the three administrators acknowledged they hadn’t read the investigative report.
The panel found John guilty. The administrators believed Jane, who neither testified nor provided a written statement, and didn’t believe him. John was suspended for an academic year.
John sued Purdue, arguing, among other claims, that the school had discriminated against him on the basis of sex in violation of Title IX. He asserted that Purdue had twisted its Title IX process to give the appearance of cracking down on campus sexual assault.
John noted that under the 2011 “Dear Colleague” letter from the U.S. Department of Education (DOE) to colleges, the DOE could strip federal funding if a school inadequately responded to sexual misconduct allegations. The letter reflected a number of concerns, including that women aged 18-24 experience a much higher rate of sexual assault than any other age group and that some survivors of sexual assault fear the potential repercussions of reporting an incident and thus decline to come forward. Purdue was also under investigation by the DOE for possible non-compliance with Title IX. John insisted that the school possessed a financial motive to discriminate against male students.
Writing for the court, Judge Barrett sharply criticized Purdue, saying the school’s process, “fell short of what even a high school must provide to a student facing a days-long suspension.” She lambasted the school for refusing to disclose its evidence, a move she reasoned was “fundamentally unfair.” Judge Barrett also found it dubious that the conduct panel could find Jane more believable when panel members hadn’t spoken with her and she hadn’t provided them with a written statement—“much less a sworn statement,” the judge highlighted.
Judge Barrett surmised that the panel was “biased in favor of Jane and against John” and had “made up their minds” before giving John a chance. She reasoned it was “plausible” the university “chose to believe Jane because she is a woman and to disbelieve John because he is a man.” The judge also saw a possible desire among campus officials “to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault.”
Title IX commentators have described Judge Barrett’s opinion as very influential. A search on LexisNexis reveals it has been cited in 49 federal court rulings, at least 31 of which involved Title IX. Along with other rulings that reached similar determinations, Doe stands for the proposition that college students accused of misconduct are owed procedural safeguards generally consistent with those found in the American legal system.
The reasoning behind Doe is reflected in recent changes to Title IX procedures announced last month by DOE Secretary Betsy DeVos. Last month, the DOE adopted a new rule designed to provide greater due process in Title IX investigations. The rule supplies college students with “the right to submit, cross-examine, and challenge evidence at a live hearing.” At the same time, the rule ensures that survivors are shielded from “having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused.” Schools are now changing Title IX and disciplinary procedures to adapt to the rule. Athletic departments will need to comply with those changes.
Balancing the rights of the accused with the protection of—and justice for—survivors is a challenging objective. Senators will likely ask Judge Barrett about that balancing. Her answers, and those of others in government, will shape colleges and their athletic departments for years to come.