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Saturday, July 20, 2019

Appeals panel: Male Purdue student suspended, kicked out of ROTC in 'fundamentally unfair' sex assault investigation

Federal Court

By Dan Churney | Jul 8, 2019


Purdue University | Quinn Thomson [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)]

CHICAGO -- A federal appeals court has ruled a former Purdue University student has made a plausible case that the school wrongly suspended him, on the basis of his gender, for alleged sexual misdeeds against a female student, which he said ruined his ambition to become a naval officer, based on a process judges said "fell short" of what is required to suspend a high school student for misbehavior.

The June 28 decision was written by Circuit Judge Amy Barrett, with agreement from fellow judges Amy St. Eve and Diane Sykes, of the U.S. Court of Appeals for the Seventh Circuit. The ruling favored a male student, identified only as John Doe in court papers, in his lawsuit against Purdue University, which is in West Lafayette, Ind.

In 2015, court documents show, Doe was enrolled at Purdue and taking part in the school's Naval Reserve Officers Training Corps program. He also had an ROTC scholarship. He was romantically involved with a female ROTC student for a few months, but he said their relationship ended in January 2016 after she allegedly tried to kill herself and became angry at him for reporting the attempt to school officials. She is referred to as Jane Doe.


Seventh Circuit Judge Amy Coney Barrett | Youtube screenshot

The following April, the suit says, Jane Doe orally complained to the school that John Doe had allegedly groped and penetrated her while she was asleep the previous fall and had rummaged through her underwear drawer without permission. John denied the allegations but the school suspended him one year. As a consequence, John Doe said he had to resign from ROTC, lost his scholarship and his hoped-for naval career. He has not returned to the school, according to court documents.

John Doe sued in U.S. District Court for the Northern District of Indiana, alleging the university denied him due process several ways. As examples, the plaintiff said he was not allowed to cross-examine Jane Doe, was not furnished with any evidence used by the school and he was not allowed to present evidence. John Doe further said the chief investigator, dean of students Katherine Sermersheim, never talked to Jane Doe or took a sworn statement from her.

Magistrate Judge Paul Cherry dismissed the suit, finding no indication that Purdue denied due process because John Doe was not deprived of liberty or property, and there were no signs the school engaged in sex discrimination.

On appeal, Barrett derided the school's alleged procedures.

"Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension," she wrote. "Withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. It is plausible that Sermersheim and her advisers chose to believe Jane because she is a woman and to disbelieve John because he is a man. 

"As John tells it — and again, we must accept his account as true — the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account. They made up their minds without reading the investigative report and before even talking to John."

Further, Sermersheim's "basis for believing Jane is perplexing, given that she never talked to Jane," Barrett said.

In support, Barrett pointed to a Facebook post put up by the university's Center for Advocacy, Response, and Education in April 2016, which was Sexual Assault Awareness Month on campus, and the month that Jane accused John. The center helps victims of sexual violence. The post was of a Washington Post story, headlined, "Alcohol isn't the cause of campus sexual assault. Men are." Barrett said this post "could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault."

John Doe alleged the school's motive for allegedly railroading him, and other male students in the same predicament, was to maintain federal funding, by showing the school's commitment to cracking down on sexual assault. In connection with this purported motive, the U.S. Department of Education's Office of Civil Rights had opened two investigations into Purdue during 2016. In Barrett's words, these investigations suggest "pressure on the university to demonstrate compliance was far from abstract."

Barrett sent the case back to district court for further proceedings, but noted, "John Doe may face problems of proof, and the factfinder might not buy the inferences that he’s selling."

John Doe has been represented by the Law Office of Damon M. Cheronis in Chicago, the firm of Nesenoff & Miltonberg in New York, and Alex Mendoza Law, of Chicago and Hammond, Ind.

Purdue has been defended by Stuart & Branigin of Lafayette, Ind.

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