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Falsely describes the ruling’s reasoning

Institutions of higher education have probably gotten away with massive racial discrimination against nonwhite students in sexual misconduct proceedings, particularly when a white student accuses them.

It’s an open secret among those involved in Title IX cases that nonwhite students – especially foreigners – are disproportionately accused of sexual misconduct and get worse treatment in proceedings than their white counterparts.

The dynamics rarely get put into hard figures, though, because the Department of Education doesn’t require colleges to disclose the races of students in these proceedings.

When they come out, as happened at New York’s Colgate University, they are disturbing. In a single academic year, half the reported allegations were against black males, who composed 4.2 percent of the Colgate student body that year. They constituted a massive 40 percent of formal adjudications.

You’d think that minority and racial justice groups would be aware of these troubling dynamics, seeing as they believe campuses (not just Princeton) are hotbeds of “systemic racism.”

For the best-known such group in the country, you’d be wrong.

In fact, the NAACP is campaigning against Amy Coney Barrett’s Supreme Court nomination based in part on one of her rulings that helped black male students.

It’s not the first time the NAACP has tried to halt justice for these students. It suspended the leader of a county chapter for endorsing state legislation that would strengthen due process for accused students, saying he was out of step with the national organization’s campaign against Education Secretary Betsy DeVos’s* similar Title IX overhaul.

The 15-page opposition letter to the Senate Judiciary Committee includes a section on Barrett’s ruling against Purdue University last year, and it’s so badly written that it repeatedly misstates the contents of the ruling.

Under the Orwellian heading “DENYING EQUAL EDUCATIONAL OPPORTUNITIES” – which supposedly describes a ruling on protecting equal educational opportunities – the NAACP nonsensically claims the Purdue ruling “suggests [Barrett] would make it harder for governments and schools to expand opportunities for students of color.”

MORE: SCOTUS nominee Barrett draws attention for ruling against Purdue

In Doe v. Purdue, the unanimous three-judge panel found that the public university conducted a “fundamentally unfair” Title IX proceeding that wasn’t even good enough in a high-school context.

Purdue judged the accused student guilty before reviewing the investigative report, hid the report from him and didn’t require his accuser to submit written testimony or attend the hearing. It simply found her more credible in absentia, going so far as to ignore the accused student’s “specific impeachment evidence,” which undermined the accuser’s credibility.

The taxpayer-funded institution destroyed the accused student’s future with the Navy, which ousted him from the ROTC program based on the fundamentally unfair proceeding. It didn’t learn its lesson, getting in trouble with another judge this year for another “fundamentally unfair” Title IX proceeding.

These cases have been a grotesque stain on President Mitch Daniels’ otherwise sterling stewardship of Purdue.

Read the NAACP’s false characterization of Barrett’s ruling and you’d know none of this.

It says the accused student was suspended “for sexually assaulting a classmate,” a finding that was very much in doubt given the university’s documented misbehavior in Barrett’s opinion.

It falsely claimed that Barrett’s opinion “relied in large part on the Department of Education’s efforts to fight campus sexual assault” – what accused students have termed the Obama administration’s threats to revoke federal funding if colleges don’t weaken due process for them and favor their accusers, nearly always female.

Barrett’s opinion says the opposite – that the 2011 “Dear Colleague” letter, “standing alone, is obviously not enough” to show a “plausible inference” that Purdue discriminated against the male student because of his sex.

Read it yourself (pp. 27-28):

The letter and accompanying pressure gives John a story about why Purdue might have been motivated to discriminate against males accused of sexual assault. But to state a claim, he must allege facts raising the inference that Purdue acted at least partly on the basis of sex in his particular case.

MORE: DeVos Title IX overhaul would address ‘troubling racial dynamics’

For good measure, the letter misrepresents what Barrett held in Purdue.
Letter: opinion "relied in large part on [ED's] efforts to fight campus sexual assault"
Opinion: ED guidance "standing alone, is obviously not enough to get [acc'd student] over the plausibility line." pic.twitter.com/is3xoYt4GR

— KC Johnson (@kcjohnson9) October 12, 2020

The NAACP letter butchers Barrett’s careful analysis and cartoonishly claims she said “the Department’s decision to take such [sexual] violence ‘very seriously’ suggested bias against men.”

The opinion noted that the Department of Education had opened two investigations into Purdue the year it investigated the accused student, showing “the pressure on the university to demonstrate compliance [with the Dear Colleague letter] was far from abstract.”

The NAACP mischaracterizes this language as Purdue having “recently been faulted for failing to properly investigate sexual assaults”:

This topsy-turvy reasoning, applied elsewhere, would turn efforts to combat discrimination into a sword to be wielded against schools and governments seeking to remedy educational inequality.

The once-great civil rights organization tries to spin this decision – whose reasoning has been adopted by three other appeals courts just this year – as evidence of Barrett’s “regressive approach” that will lead her to strike down affirmative action policies.

Since Barrett has said her judicial philosophy is the same as the late Justice Antonin Scalia’s, and Scalia has harshly criticized the “racially proportionate admissions” enabled under the cover of race-conscious admission, that must mean Barrett will hurt black students.

The NAACP conveniently fails to mention that it’s not seriously disputed that black male students get the shaft in Title IX investigations. It’s one reason prominent feminist legal scholars strongly backed DeVos’s Title IX overhaul, which took effect in August.

It had no reason to cite the Purdue decision to argue against Barrett’s confirmation – two long paragraphs in a 15-page letter. It looks like it wanted a way to ding her for opposing affirmative action without any evidence from her rulings, and was grasping at straws with Purdue.

Lucky for black male students, Amy Coney Barrett is watching out for their rights.

*Disclosure

MORE: Campus kangaroo courts target nonwhite men

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