Regarding the nomination of Merrick Garland to the Supreme Court, U.S. Sen. Cory Gardner, speaking as if he were Lindsey Graham’s ventriloquist’s dummy, said in March (not October!) of 2016, "Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court justice will influence the direction of this country for years to come."
Next week, Gardner should go to the Senate floor with the integrity to stand by his 2016 words. He should vote no, or at least request that the confirmation vote be held after inauguration day. That’s a reasonable ask, knowing he is likely to lose his seat in a few days anyway.
Amy Coney Barrett will be a disastrous addition to the Supreme Court and an insult to the legacy of Ruth Bader Ginsburg. She will imperil our hard-won successes for victims of sexual harassment, survivors of campus sexual assault, for those who have been discriminated against in the workplace, and for so many who have turned to our civil rights laws for protection and justice.
In one of her more egregious misinterpretations on the Seventh Circuit, Barrett wrote an opinion that makes it easier for named harassers and rapists to sue their schools and harder for schools to hold students accountable for sexual misconduct, thus contorting the original intent and long-standing use of Title IX, a civil rights act that provides protection for students of all genders who face sexual harassment and violence.
In the case of Doe v. Purdue University, John Doe was suspended after sexual assault reports against him. He used Title IX to sue Purdue for anti-male bias — even though there was no evidence of that. The case went up to the Seventh Circuit and Judge Amy Coney Barrett sided with Doe. In the end, an investigation revealed that Doe appeared to admit to and apologize to his ex-girlfriend for the sexual assaults.
As the National Women’s Law Center writes, Barrett’s decision turns Title IX into a law that protects assailants far more than their victims. In Barrett’s view, efforts to protect survivors of sexual assault prove discrimination against men, even though the reality is that people of all genders commit and are victims of sexual violence.
Lawsuits like Doe’s fuel the dangerous misconception that false accusations are common, obscuring the reality that campus sexual assault is far too common and remains inadequately addressed. Only a tiny fraction of victims report their assailants. There is no spate of anti-male false reporting; there is under-reporting. There is no discrimination against men here; there is only the survivors’ fear of retaliation, of intimidation, of ridicule.
As the Board Chair of the Colorado Coalition Against Sexual Assault (CCASA), I am concerned about the effects of Amy Coney Barrett’s Doe v. Purdue ruling in our state. Her thinking could undermine CCASA’s multi-year undertaking to develop a reasonable and fair solution for campuses to respond to sexual misconduct. Last year, CCASA worked with survivors, advocates, and lawmakers on Senate Bill 19-007, which was signed into law. We also participated in the Colorado Department of Higher Education’s Sexual Misconduct Advisory Committee, which makes recommendations to the General Assembly and institutions of higher education on the new rules on Title IX dealing with sexual misconduct issued by Betsy DeVos’ Department of Education. Doe, and future Supreme Court rulings with Barrett on the bench, could drastically weaken, change, or eliminate such bills, laws, and committee recommendation.
In the future, as the National Women’s Law Center points out, the Supreme Court will determine whether schools can take meaningful action to address and prevent sexual harassment. Because of Doe v. Purdue, students disciplined for sexual misconduct have already filed over 600 lawsuits against their schools, and as they become more emboldened by the Trump administration’s recent weakening of Title IX protections, some of these cases may reach the Supreme Court. Student survivors have also requested the court’s review in cases that would decide whether students who are expelled because they rejected their professor’s overtures have no recourse under Title IX.
During the three days of hearings, not a single question was asked about Barrett’s ruling in Doe v. Purdue. Not only has this process been irresponsibly rushed and hypocritical, but its culmination in Barrett’s confirmation would be irreparably damaging. Survivors deserve better.
Alison McCarthy, LSW, is assistant director for victim advocacy & violence prevention at Regis University in Denver. She is the CCASA Board chair and a member of the CCASA survivor task force.