Thread by @kcjohnson9

Just in: CA7 rules for acc'd student in Purdue appeal. Judge Barrett: given the stakes, & given case involved "sexual violence rather than academic failure," acc'd student was entitled "to relatively formal procedures."

Barrett: @LifeAtPurdue process was fundamentally unfair. University w/held critical evidence--which in & of itself would have been enough for district court to deny Purdue's due process MTD.

Judge Barrett: due process requires that hearings not be a "sham." Suggests that Purdue's process didn't clear that bar--no meaningful chance for acc'd student to defend himself.

Exculpatory evidence: Judge Barrett suggests that Purdue's failure to even interview potentially exculpatory witnesses rendered process "fundamentally unfair" to acc'd.

TIX section of ruling is v. interesting. CA7 becomes first Circuit to bypass Yusuf approach: " 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'?"

Long section noting how Dear Colleague letter heightened pressure on colleges. CA7 incorporates, in the opinion itself, the critical CA2 Columbia footote: biased process "in order to avoid liability or bad publicity" is enough to show "sex discrimination," regardless of motive.

Tha Purdue procedures did not require accuser to testify at hearing, Judge Barrett suggests, is enough to suggest gender bias, given that this was a he-said/she-said case that comes down to credibility.

This section echoes Judge Thapar's opinion in CA6 Michigan case: biased procedures can raise concerns about gender discrimination. Thapar used that point to tie the due process section of the opinion to TIX and thus private colleges; Barrett has hinted at the same thing here.

Opinion is limited in two important ways. First, & most impt, panel didn't address the x-exam issue, b/c Purdue's procedures were so unfair on other grounds. Second, panel provided torturous path (due to existing CA7 precedent) to even consider due process claim. ROTC status key.

The full opinion (h/t @mjs_DC), from Judge Amy Coney Barrett, is at link below. Case was argued by Phil Byler at @NMLLPLaw. & my earlier writeup on oral argument is at: academicwonderland.com/2018/09/18/pos…
media.ca7.uscourts.gov/cgi-bin/rssExe…

Oral argument in the case was also the first CA7 oral argument to be video'd (through new local rule, at my request, & over opposition of Purdue lawyer). Judge Barrett's reasoning was clear even then:
vimeo.com/290560837

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