Law & Courts

Court Pick Ruled on Campus Sex Assault, Other Education Issues as Appeals Judge

By Mark Walsh — September 26, 2020 11 min read
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President Donald Trump on Saturday named Amy Coney Barrett, a Chicago-based federal appeals court judge and the leading contender on his shortlist, to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court.

Barrett, 48, is a former law clerk to the late Justice Antonin Scalia. She was appointed by Trump in 2017 to the U.S. Court of Appeals for the 7th Circuit. In 2019, in her most significant education opinion to date, she made it easier for students accused of sexual assault to challenge college disciplinary procedures as violating due process and being inconsistent with the prohibition against sex discrimination in federally funded schools under Title IX of the Education Amendments of 1972.

In her short tenure on the 7th Circuit, Barrett has also joined opinions involving qualified immunity over a police response to an incident of violence near a school, public school bus transportation for private schools, the exemption from anti-discrimination laws for religious school teachers, free speech for a school administrator, and special education.

“She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution,” Trump said at a Rose Garden ceremony.

Barrett grew up in Metairie, La., in a large Roman Catholic family, the daughter of an oil company lawyer and a homemaker. She graduated from St. Mary’s Dominican High School, a Catholic girls school in New Orleans, then studied English literature at Rhodes College in Memphis, and went to law school at the University of Notre Dame.

She began teaching at Notre Dame law school beginning in 2002, and the school still lists her as a faculty member. She is married to a fellow law graduate of the school, Jesse M. Barrett, and they have seven children, all under 20, including two who are adopted from Haiti and one with Down syndrome.

“Our children obviously make our life very full,” Barrett said at the White House. “While I am a judge, I’m better known back home as a room parent, car pool driver and birthday party planner. When schools went remote last spring, I tried on another hat. Jesse and I became co-principals of the Barrett e-learning academy. And yes, the list of enrolled students was a very long one.”

Turning to substance, Barrett said that if confirmed, she would not assume the role of justice “for the sake of those in my own circle and certainly not for my own sake.” She would “administer justice without respect to persons” and “do equal right to the poor and rich,” she said.

Influential Education Opinion

In Doe v. Purdue University in 2019, Barrett wrote the opinion for a 3-0 panel of the 7th Circuit that revived a lawsuit by a male student at the West Lafayette, Ind., university over its adjudication of sexual violence charges against him.

The decision revived the student’s 14th Amendment due process of law and Title IX claims, part of a trend among federal appeals courts in favor of greater procedural protections in how colleges handle such claims. That trend has been echoed by U.S. Secretary of Education Betsy DeVos’s own recently finalized Title IX guidelines, although those weren’t at issue in case involving the student identified as John Doe.

The student identified as John Doe denied the charges, but he was suspended from Purdue’s Naval ROTC program while the university investigated and pursued its disciplinary process. John faced a discipline panel that asked accusatory questions and refused to allow him to present witnesses. His accuser did not appear before the panel, which reviewed her written allegations. The university found Doe guilty of sexual violence by a preponderance of the evidence and suspended him from the institution for one year. Doe was discharged from the ROTC program and lost his related scholarship.

Doe’s lawsuit was dismissed by a federal district court. The 7th Circuit panel revived both his due process and Title IX claims.

Discussing John Doe’s due process claim, Barrett referred to a landmark Supreme Court decision on discipline in K-12 education. In Goss v. Lopez, in 1975, the court held that K-12 students facing suspension have property and liberty interests in their education under the due-process clause. Even a suspension of 10 days or less requires certain minimal procedural protections, and greater punishments would require more under the decision.

Doe had a liberty interest in his ROTC participation, Barrett said, and he was entitled to “relatively formal procedures.”

“Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” Barrett said. “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.”

As for Doe’s Title IX claim, Barrett said Purdue’s process was influenced by a 2011 “Dear Colleague” letter issued by the U.S. Department of Education that “ushered in a more rigorous approach to campus sexual misconduct allegations.”

Barrett said a key administrator and the disciplinary panel were biased in favor of the female accuser and against John Doe.

“Taken together, John’s allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex,” Barrett concluded.

School Cases From Wisconsin

In her other education cases so far, Barrett joined a majority opinion or an unsigned opinion in the kind of matters that come up routinely before federal appeals courts, though she has dealt with might be considered an unusual number of cases involving private schools, all from Wisconsin. (The 7th Circuit also covers Illinois and the state where Barrett resides, Indiana.)

In one of those cases, Barrett joined an unsigned, 3-0 panel decision against a Hebrew-language teacher in her disability-discrimination lawsuit against a Jewish day school. The school raised the defense of the “ministerial exception,” which the Supreme Court recognized in a 2012 case in holding that churches were exempt from anti-discrimination claims by their ministers. The high court did not clearly say at that time whether all religious school teachers were covered by the exception.

The 7th Circuit panel, in Grussgott v. Milwaukee Jewish Day School, held that the ministerial exception applied to the Hebrew-language teacher because Hebrew teachers at the school were expected to follow a unified Hebrew and Jewish studies curriculum and to integrate religious teachings into their lessons.

The Supreme Court later in 2018 declined to hear the Hebrew teacher’s appeal. Just last term, the high court ruled 7-2 in Our Lady of Guadalupe School v. Morrissey-Berru that the First Amendment’s religion clauses foreclose federal courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith. The 7th Circuit’s decision in the Hebrew teacher’s case appears consistent with that high court ruling.

Last year, in another Wisconsin case, Barrett was in the majority in a 2-1 ruling that rejected a key claim by a private religious school challenging disparate transportation requirements for public and private schools. St. Joan Antida High School challenged its exclusion from a Milwaukee school district program offering bus transportation to private school pupils.

The 7th Circuit panel rejected the school’s claims that its exclusion from the transportation program violated the 14th Amendment’s equal-protection clause. The court sent a separate claim over a deadline for a roster of private school students who needed bus transportation back to a lower court for further fact-finding. The dissenting judge would have found that the transportation program discriminated against the private school.

Barrett also joined a 3-0 decision in 2019 that rejected the claims of a group of students with disabilities whose applications to transfer to other school districts under Wisconsin’s open-enrollment law were denied because the nonresident districts said they could not meet the students’ special needs.

One student in the suit had applied to transfer from the Milwaukee district to a suburban district and his application was accepted, court papers say. But once the district found out that the student had an individualized education program under federal special education law, it withdrew the student’s acceptance, the suit alleged.

The panel held that the state open-enrollment program’s requirement that nonresident school districts have the excess capacity to meet the needs of transferring students was a fundamental component and thus the students’ claims under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 failed.

A Superintendent’s Speech

In a public education case, Barrett this past August joined a 3-0 panel decision that upheld a $400,000 jury award to an Illinois school superintendent whose contract was not renewed amid turmoil that started with her effort to have an audit of district finances. The superintendent alleged that a school board member threatened her, and she filed a police report. After she suspended the district’s business manager, the board did not renew her contract.

The superintendent sued, alleging retaliation in violation of the First Amendment and won the large jury award. On appeal, the 7th Circuit panel rejected the school district’s arguments that the filing of the police report was a personal grievance, not speech on a matter of public concern that was protected by the First Amendment.

The 7th Circuit opinion said the superintendent’s police report went well beyond a personal grievance under the facts of the case, and thus the jury’s finding was reasonable. But the court also suggested that the district could have raised a defense that the superintendent’s speech was job-related, which would have meant it was not protected under Supreme Court precedent. But the district had failed to raise that argument.

In a 2019 case dealing with the hot topic of qualified immunity for alleged police misconduct, Barrett wrote the opinion for a 3-0 panel that said three Chicago police officers, including a “school sergeant” in charge of investigating violence near campuses, could not be held liable in a suit brought by three suspects who alleged they were unjustifiably stopped and searched.

The police were investigating a drive-by shooting near a Chicago high school when they stopped a car with three Black male occupants. The make and color of the car met some descriptions of the one involved in the shooting, and the police had noticed that the suspects’ car had driven by the scene of the shooting twice while they were on the scene. The three Black males were detained and searched but later released.

The men sued the officers, alleging there was a lack of probable cause to stop them. In a fact-laden opinion, Barrett wrote for the court that the stop was reasonable under the Supreme Court’s 1968 decision in Terry v. Ohio, which held that officers may conduct a brief investigatory stop if they reasonably suspect that someone has committed a crime. Thus, the officers were entitled to qualified immunity, she said, which “protects government officials from liability for civil damages as long as their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified immunity has been criticized by scholars and Supreme Court justices, but the high court recently passed up the chance to reconsider the doctrine by denying review of multiple cases raising a broader attack. But Barrett’s opinion in the Chicago case was a fairly straightforward application of settled law.

A Notable Gun Ruling

Given recent mass school shootings, Justice Brett M. Kavanaugh was confronted by many questions at his 2018 confirmation hearing about his views on gun rights, and he had a brief but much-publicized encounter in the hearing room with the father of a victim of the school shooting that year in Parkland, Fla.

Barrett has one opinion on guns that is attracting wide scrutiny. In a 2019 case, she dissented from a panel ruling that had rejected arguments by a convicted felon that restrictions on felons owning firearms violated the Second Amendment.

Barrett, in the case involving a man with a felony conviction for mail fraud, said that neither Wisconsin nor the federal government had “introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe.”

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote. “But that power extends only to people who are dangerous.”

Barrett served as a law clerk to Scalia in the 1998-99 term, when the Supreme Court heard arguments in two important education cases. In one, Scalia joined the majority that ruled that federal special education law required a school district to provide a student who depended on a ventilator with full-time nursing services in school. In another, Scalia was in dissent in a decision that school districts could be sued under Title IX when they were deliberately indifferent to student-on-student sexual harassment.

As a law clerk, Barrett had, at the very least, an insider’s view of the court’s deliberations in those cases.

PHOTO: Judge Amy Coney Barrett speaks in the White House Rose Garden on Saturday after President Donald Trump announced her as his nominee to the U.S. Supreme Court.

A version of this news article first appeared in The School Law Blog.