At Real Clear Politics, Peter Berkowitz comments on Title IX and due process on college and university campuses and a recent Second Circuit opinion:
Earlier this month in Vengalattore v. Cornell University, the United States Court of Appeals for the Second Circuit provided a welcome affirmation of colleges’ and universities’ obligation to respect due process on campus. The court resolved a technical question of law and remanded the case for consideration on the merits of critical elements of the complaint. But Judge José Cabranes’ stern concurrence stressed that nothing less than the future of liberal education in America is at stake in this case – and the many others like it winding their way through the courts.
* * *
In Vengalattore v. Cornell University ([Berkowitz serves] on the board of the New Civil Liberties Alliance, which represents the plaintiff-appellant), the appeals court overruled the trial court, holding “that Title IX affords a private right of action for a university’s intentional gender-based discrimination against a faculty member, and that the Complaint sufficiently asserts such a claim.” Enacted in 1972, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Here is Circuit Judge José Cabranes' concurrence (footnotes omitted):
I concur in the judgment of the Court and in Judge Kearse’s comprehensive opinion. I pause briefly to comment, in my own name, that, as alleged, this case describes deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX and other closely related statutes. In many instances, these procedures signal a retreat from the foundational principle of due process, the erosion of which has been accompanied — to no one’s surprise — by a decline in modern universities’ protection of the open inquiry and academic freedom that has accounted for the vitality and success of American higher education.1
This growing “law” of university disciplinary procedures, often promulgated in response to the regulatory diktats of government, is controversial and thus far largely beyond the reach of the courts because of, among other things, the presumed absence of “state action” by so-called private universities. Thus insulated from review, it is no wonder that, in some cases, these procedures have been compared unfavorably to those of the infamous English Star Chamber.2
Vengalattore’s allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell’s investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances.3
There is no doubt that allegations of misconduct on university campuses — sexual or otherwise — must, of course, be taken seriously; but any actions taken by university officials in response to such allegations must also comport with basic principles of fairness and due process. The day is surely coming — and none too soon — when the Supreme Court will be able to assess the various university procedures that undermine the freedom and fairness of the academy in favor of the politics of grievance.
In sum: these threats to due process and academic freedom are matters of life and death for our great universities. It is incumbent upon their leaders to reverse the disturbing trend of indifference to these threats, or simple immobilization due to fear of internal constituencies of the “virtuous” determined to lunge for influence or settle scores against outspoken colleagues.