NWLC signed on to an amicus brief submitted by Public Justice and James Davy, Esq. on June 26, 2020 in support of the University of the Sciences’ petition for a rehearing arguing that the University was not motivated by gender bias when it expelled a male student, John Doe, for sexual assault and that the University provided a fair disciplinary process when it interviewed his witnesses instead of allowing him or his advisor to cross-examine witnesses in a live hearing.
Specifically, the brief argues that the University’s decision not to investigate three women for student misconduct violations did not constitute gender bias against Doe. First, the school was justified in not investigating one of the women for allegedly violating the school’s policy for having sex with Doe when he had been drinking, given that Doe stated their sexual encounter was consensual. Second, the court should not have compared Doe to two women who potentially violated a confidentiality policy; by that logic, any student who is disciplined for any conduct violation will be able to bring a discrimination lawsuit as long as they can find any student of a different gender (or race, etc.) who was not disciplined for any other conduct violation. The amicus brief also asks the Third Circuit to clarify that private colleges and universities in Pennsylvania may continue to use “indirect” cross-examination, which is less traumatizing than “direct” cross-examination, as it allows parties to submit questions to a neutral official who asks the questions on their behalf. Almost all courts that have addressed this issue have allowed indirect cross-examination,and the amicus brief notes that requiring direct cross-examination only for students who report sexual misconduct is subjecting them to uniquely burdensome and traumatizing procedures that are not required in other student misconduct proceedings.
In addition to NWLC, other organizations who joined Public Justice’s brief include Women’s Law Project, Atlanta Women for Equality, Harvard Law School Gender Violence Program, and Know Your IX.