In a decision that is set to strike American campuses like a thunderbolt, a trio of appellate judges in the Second Circuit handed professors and others accused of sexual harassment without due process the ability to turn to federal civil rights law as they seek to defend themselves.  

In what is poised to become a classic defense of due process on campus, one of the judges, José Cabranes, thundered in a concurrence that a Cornell professor denied tenure on account of a sexual harassment allegation had faced a system that is the rough equivalent of an “English Star Chamber,” a notorious and unaccountable tribunal that once sat at Westminster. 

The judge decried the potential “miscarriages of justice that ensue” that “are matters of life and death for our great universities.” He urged those who run universities to overcome “fear of internal constituencies of the ‘virtuous’ determined to lunge for influence or settle scores against outspoken colleagues.”

The case that precipitated this, Vengalattore v. Cornell, could implicate colleges nationwide. A panel of three circuit riders — Judges Amalya Kearse and Rosemary Pooler, in addition to Judge Cabranes — unanimously held that a male professor can invoke the protection of federal anti-discrimination law in response to accusations of sexual harassment. 

In his concurrence, Judge Cabranes wrote that the procedures to adjudicate sexual harassment implemented during the Obama administration “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.”

The case centered on a physics professor at Cornell, Mukund Vengalattore, who was accused of sexual harassment by a graduate student, called “Jane Roe,” who allegedly claimed “if I have my way, Dr. Vengalattore will have a hard time getting tenure.”

Following Ms. Roe’s allegations of both rape and a subsequent consensual relationship, Mr. Vengalattore was denied tenure. He denied any sexual relationship with Ms. Roe, and subsequently claimed that the “investigation was conducted in a manner that was designed to support Roe’s accusation.”

Dr. Vengalatorre sued Cornell, arguing that news had spread of his alleged misconduct and that he has been “denied academic appointment or laboratory access at other universities” because of “Cornell’s knowing communication of false findings that he had a sexual relationship with a student and lied about it.”

The basis of Dr. Vengalatorre’s suit was Title IX as well as another federal provision, Title VI of the Civil Rights Act of 1954, which bans “discrimination on the basis of race, color, or national origin.” The professor alleges that he was discriminated against on the basis of his gender and Indian heritage.  

Dr. Vengalatorre was allegedly told by a colleague, “Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies,” referring to Ms. Roe. The graduate student also allegedly told Dr. Vengalattore, “You are all Indians. Of course you stick together.”

At issue in the case are changes effected by the Obama administration’s education department. The changes altered how Title IX complaints are adjudicated on campus. Unlike in a court of law, the burden of proof was not borne by the accuser.  

The instrument that catalyzed this change, called a “Dear Colleague Letter,” was promulgated in 2011. It swapped a “clear-and-convincing” evidence standard for a looser one requiring merely “preponderance of the evidence.” Nor did it require that any investigator “disclose evidence favorable to the accused to anyone, at any stage of the investigation.”

The “Dear Colleague Letter” also “strongly discourage[d] schools from allowing the parties personally to question or cross-examine each other during [a] hearing.” Dr. Vengalatorre claimed that the Department of Education, through this policy change, coerced Cornell to abandon due process. 

While the distinct court dismissed a battery of claims by Dr. Vengalatorre against both Cornell and the Department of Education, the circuit riders maintained that a faculty member can pursue a gender based lawsuit under Title IX. In this case, they found that Dr. Vengalatorre marshaled a plausible case for such a claim.

Judge Cabranes, in his concurrence, warns of “the brutish overreach of university administrators at the expense of due process and simple fairness.” He warns that “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.”