Attorneys in a federal lawsuit alleging Purdue wrongly expelled a former Navy ROTC student in a sexual assault claim are arguing over whether Purdue President Mitch Daniels should be required to testify in a deposition.

Meanwhile, the federal appeals court judge who wrote the 2019 opinion that resurrected the case — Amy Coney Barrett of South Bend, Indiana — was nominated Saturday for the open U.S. Supreme Court seat, bringing renewed attention to the case of John Doe v. Purdue University.

A former Navy ROTC student called John Doe in court documents sued Purdue in 2017, after he said he was not given due process in defending himself to the University’s three-person Advisory Committee on Equity. After his case was dismissed by a district judge for failure to state a claim, Doe appealed the November 2017 decision. In September 2018, three Seventh Circuit Appeals Court federal judges heard oral testimony.

The decision says Purdue might well have erred in its process by not interviewing the woman who claimed assault, not allowing Doe to present testimony and possibly discriminating against his gender.

The appeals court judges decided John Doe might have been discriminated against because immediately upon entering the panel hearing, his recount of events was apparently worth less than Jane Doe’s. This happened despite the fact that she didn’t provide written testimony nor ever spoke with the panel or Katherine Sermersheim, associate vice provost and dean of students, according to court documents.

Sermershiem believing Jane’s version of events without ever hearing from her “is perplexing,” Barrett wrote in the decision, considering that “Jane did not even submit a statement in her own words to the Advisory Committee.”

In addition to naming the University as a defendant, John also sued Sermersheim; Daniels; and the vice president for ethics and compliance, Alysa Rollock.

As the case has resumed, Rollock and Sermersheim have already testified for depositions, federal court records say. 

Depositions occur before trial and allow the party taking the deposition to learn the facts held by the other side and third parties.

Purdue's attorneys objected to Daniels being required to sit for a deposition because, they say, he was not involved in Doe's case.

"The noticed deposition would be an undue burden and an annoyance," the attorneys wrote in a motion for a protective order filed Sept. 11. "As the former governor of Indiana, President Daniels is a well-known public figure. His prominence exposes him to inappropriate deposition requests motivated by nothing more than his status."

But Doe's attorneys countered in an opposing document filed Thursday. They contend the case law arguments Purdue's attorneys cited were at issue only in cases where the court ruled against the necessity of deposing those in authority who were not named defendants, as Daniels is in this case.

Daniels "is ultimately responsible" for Purdue's compliance with federal law that governs how sex assault investigations are handled on college campuses, the court document says. Daniels "is the president of defendant Purdue who says 'The Buck Stops Here' with him."

Doe’s claim is one being seen with increased regularity in recent years as lawyers representing alleged assailants on college campuses try to combat the effects of a 2011 “Dear Colleague” letter disseminated by the U.S. Department of Education under the Obama administration, which directed schools to use a preponderance of evidence standard when determining guilt or innocence of an accused in sexual assault investigations.

This preponderance of evidence standard requires a level of certainty greater than 50% for determination of guilt.

A “Dear Colleague” letter is an unofficial memo distributed to members of a legislative body informing them of upcoming action. In this case, the letter was used to provide universities receiving federal dollars with guidelines on how to structure investigations into alleged sexual assaults.

Lawyers representing clients in similar situations to Doe here at Purdue were given ammunition by the interim guidance issued in 2018 by the U.S. Department of Education under Secretary of Education Betsy DeVos’ command. The interim guidance effectively rescinded the preponderance of evidence standard created by the Obama-era letter.

Schools are now instructed to use a higher standard known as “clear and convincing evidence,” but DeVos left it up to schools to decide whether or not to adopt the suggested change in policy. The DeVos letter stated that the old rules lacked “basic elements of fairness” with a bias in favor of the accuser over that of the accused in sexual assault cases.

Doe's attorneys also point out that this case has drawn national attention in its examination of how Title IX cases are investigated, and it quotes Barrett's ruling extensively.

When a federal case is dismissed by a judge early in the process, as this one was, appeals court judges do not try the case but must consider whether the limited evidence available suggests the case should proceed.

"Purdue's process fell far short of what even a high school must provide to a student facing a days-long suspension," Barrett wrote in the three-justice appellate court panel's ruling. "Withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. ... And in a case that boiled down to 'he said/she said,' it is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness — in fact, that she was credible at all — without even speaking to her in person."

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