If you’re a woman, or someone who cares about women, it’s hard to pinpoint what the most disturbing thing about Amy Coney Barrett’s nomination to the Supreme Court is, exactly.
Is it that she joined a dissent in 2018, suggesting that Mike Pence’s Indiana law requiring a funeral for fetuses was maybe constitutional and should be heard by the entire appellate court en banc? Is it that, in 2013, she didn’t include Roe v. Wade in a law review article list of super-precedents that she felt could never be overturned, no matter the personal and religious beliefs of the justices hearing the case? Is it that, in 2015, she joined Notre Dame’s “Faculty for Life” group, which sent a letter to U.S. Catholic bishops stating that they believed life began at conception and ended at natural death? Is it her affiliation with People of Praise, a hardcore religious organization that encourages speaking in tongues and which calls their women “handmaidens?”
I’ll admit, I don’t feel great about any of those, but especially not that last one.
For all the scrutiny Coney Barrett’s legal and personal history is under right now, one case, for which she wrote the unanimous opinion, stands out as being worse than all the others, both because of where she came down and because of the influence that case had on how other courts have handled campus sexual assault rulings. That would be John Doe v. Purdue University, a case that makes it easier for those disciplined for sexual assault to sue their universities — thus making it harder on women to seek justice for rape under Title IX, especially when athletes are involved.
John Doe, a Purdue student, was suspended from campus and ultimately forced out of his Navy ROTC program after being accused of sexual assault by a former girlfriend, referred to in the case as Jane Doe. After reporting the assault to the university, two investigators were charged with looking into the incident and believed Jane Doe. They wrote up a report that was submitted to a university disciplinary committee, which John Doe only got a redacted copy of moments before the disciplinary hearing began. Jane Doe did not appear before the committee nor did she submit anything in her own words as testimony. Instead, a written summary of her allegations were submitted to the committee via a campus sexual assault advocacy group. The committee found Jane Doe’s allegations credible and handed down discipline against John Doe, which resulted in his removal from school for a year and the loss of his spot in the Navy ROTC program. John Doe sued Purdue University, and while the district court upheld how the school handled the matter, he ultimately won on appeal, in a ruling written by Amy Coney Barrett.
To understand why the ruling in Doe v. Purdue was so earth-shattering, you have to go back to 2011, when President Barack Obama (oh God do I miss typing that) ordered universities to make sexual assault hearings more fair under Title IX regulations. The memo, known as a “Dear Colleague letter” and administered via the Office of Civil Rights under the Department of Education, provided “guidance” for colleges and universities in handling campus sexual assault and harassment, saying in part:
A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college.3 The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college.4 According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act.5 This problem is not limited to college. During the 2007-2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools.6 Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population.7 The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.
The letter went on to urge schools to immediately investigate sexual assault allegations, take steps to minimize harassment of victims, and lays out other steps schools should take to make the reporting of campus sexaul assault fairer and less traumatizing to the victim.
If you’ve lived in America at any time during the past 244 years, you’ve likely by now heard the statistic that, out of every 1,000 sexual assaults, only 230 are reported to police, only 46 of those cases lead to arrest, nine of those cases wind up being prosecuted, and 4.6 rapists (no, I don’t want to know what .6 of a rapist looks like) winds up in jail. The Dear Colleagues Letter sought to improve those odds on victims’ behalf by removing some of the barriers to reporting rape on campus and making the investigation and disciplinary process a kinder experience for them.
So of course, the 2011 Dear Colleague letter was rescinded six years later by Education Secretary Betsy DeVos and the Trump administration.
The appellate ruling in Doe v. Purdue came down in June of 2019, at a time when colleges and universities were unsure about their obligations under Title IX in the wake of the rescinding of the Dear Colleague letter. And what Coney Barrett offered the courts hearing cases from men claiming to have been wronged by sexual assault disciplinary hearings was a simple, stream-lined question that cut through the myriad questions and caveats surrounding due process under the 14th Amendment and fairness under Title IX. She reduced the entire legal inquiry to a single question: Was it plausible that the university disciplinary hearing had discriminated against John Doe simply because he was a man?
The answer in Doe, Coney Barrett and two other women judges found, unanimously, was yes.
Reading through the facts of the Purdue case, it’s a study on how not to run a campus sexual assault inquiry. John Doe was able to talk about his history of consensual sexual intercourse with the victim, discuss friendly texts she sent him after the alleged assault, and tell the committee about her suicide attempts. A classic “this bitch is crazy” defense. On the other hand, John Doe wasn’t provided a copy of the investigators’ report until the very last minute, wasn’t allowed witnesses, and Jane Doe’s words were only conveyed to the committee via a summary of the report she’d made, which two of the three committee members admitted they hadn’t read. None of these things make for good campus jurisprudence.
But to reduce the case to a simple “is it plausible?” flies in the face of everything the Obama administration tried to do right in the Dear Colleagues letter. Is it plausible that this hearing was inherently unfair because John Doe was a man? When will something not be plausible? I equate plausibility with a “beyond a reasonable doubt” standard. How does a university prove it’s not plausible that a disciplinary committee sided against the male student just because he’s male? It’s impossible.
To be clear, Coney Barrett’s ruling comes into play when a student sues a school in federal civil court for the discipline meted out at a sexual assault hearing, not during the hearing itself. But of course it’s going to affect how schools handle sexual assault disiplinary hearings across the board. The Obama administration sought to remove the barriers that keep victims from coming forward to report their rapes. The Coney Barrett ruling will result in everything swinging back in the other direction. Especially since, in August of 2020, DeVos issued new administrative rules requiring those accused of sexual assault to be allowed to cross-examine their victims in front of a panel of officials in any campus disciplinary hearings, negating the very reason some victims chose to seek redress under Title IX rather than in criminal court: they weren’t required to face their rapist.
The Obama administration recognized and understood that the number of unreported campus rape cases was a far bigger problem than a small number of accusers who may have been wrongly accused. Both the DeVos guidance and the Coney Barrett ruling, however, elevate a small amount of injustice to men over a mass amount of injustice to women down through history. Injustice that is clearly still rampant today for anyone who takes fives minutes to educate themselves about the problem.
As difficult as it is for any victim to come forward and report a rape, think about what it takes for a victim to come forward and report a sexual asault by an athlete. Not only does an athlete have the full weight of the athletic department behind him, he’ll now get to use that weight in the hearing, being allowed to toss whatever dirt his (usually booster-sponsored) lawyers can come up with at the victim during cross-examination. Imagine being a college student, represented by campus sexual assault advocates, and having to face down an experienced lawyer on cross-examination? Most victims are going to nope on out of that scenario immediately. Which, ultimately, means not reporting their own rape. Given how hard it already is for sexual assault victims to come forward, why the burning need to make it harder?
Both DeVos and Coney Barrett, though, exist at the pleasure of the patriarchy. Men can use them to further their misogynist agendas, like controlling women’s reproductive freedom or making it more traumatizing for women to report sexual assault, and then point to them like “See! She’s a WOMAN and she agrees with us!” Both DeVos and Coney Barrett point to their faith, rather than the internalization of the patriarchy, as the reason for their world views, even as they blatantly hurt other women.
These women have always existed. Now one is likely headed for the Supreme Court.