Barrett Confirmation is a Win for Due Process on Campus
By Edward Bartlett
In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.” While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.
For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships. Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.
On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.
At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.
When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.
The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.
Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”
This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.
Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.
While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” and that, “the person who is accused has a right to defend herself or himself.”
I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.