Monday, July 1, 2019

More Nine

We recently posted a story about a court applying a due process requirement to a Title IX case in the case of a private university.* (Private universities are typically given more discretion in policy than public universities - but despite that fact, the court still wanted due process.) As we have noted, courts are used to the idea of due process and deviations tend not to pass their sniff tests. Here is yet another example, this time from Purdue:

From Inside Higher Ed: A federal appeals court ruled Friday that a student accused of sexual assault at Purdue University may have been discriminated against in the adjudication of his case -- another rebuke for an institution that was allegedly biased in its campus rape proceedings.

The panel of three judges for the U.S. Court of Appeals for the Seventh Circuit unanimously found that an anonymous student accused of groping and touching his ex-girlfriend without consent may have faced a biased investigation and hearing...

Judge Amy Coney Barrett wrote in the opinion for the three judges that withholding evidence from Doe in the proceedings was enough to make the process “fundamentally unfair.”

“To satisfy the due process clause, a hearing must be a real one, not a sham or a pretense,” Barrett wrote, referencing the fact that two members of the panel had apparently not read the investigative report -- inferring that they had made a decision against Doe based on the accusation and not evidence.

The panel had also not allowed Doe to present any of his witnesses, or required Doe to be present at the hearing, which Barrett wrote was also biased. Barrett referenced that some institutions have made rulings in favor of sexual assault victims to avoid negative press.

“A … university that adopts, even temporarily, a policy of bias favoring one sex over the other in favor in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, not withstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex,” Barrett wrote.

Full story at

We have pointed out in the past that UC could go a long way toward providing due process by separating prosecutor and judge, as is the normal practice when union grievances over employee discipline are taken to arbitration.

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