The Third Circuit this past week dealt Princeton University its latest blow in the seemingly never-ending fight over campus disciplinary procedures. The issue in this case, John Doe v. Princeton, involved a somewhat unusual set of facts about alleged but apparently unconfirmed drunken choking rather than the more typically sordid Title IX business. But the court of appeals was concerned that schools like Princeton might try to shift the locus of their Title IX kangaroo courts to “physical safety” from sex offenses in order to evade the nearly universal basic standards of fairness the courts have imposed on them around the world. Indeed Judge Krause (one of the most liberal judges on the court) basically said as much: “Universities cannot insulate themselves from Title IX liability by recharacterizing disciplinary complaints that, on their face, indicate the alleged misconduct is of a sexual nature and adjudicating those charges under disciplinary policies with lower procedural protections for respondents.”
Two things stood out in the opinion. First, it goes of its way to name four times a professor who participated in the disciplinary-committee hearing. That professor, Elizabeth Harman, the Laurance S. Rockefeller Professor of Philosophy and the University Center for Human Values, supposedly fell asleep when an important witness was giving testimony. I say supposedly, but the district-court complaint includes a screenshot of Harman dozing off. Accordingly Judge Krause called her out (repeatedly) and Judge Tom Hardiman grilled Princeton’s lawyer on whether hearings are fair when panelists doze off in their midst.
Princeton is run by Christopher Eisgruber, a lawyer by training who clerked for Justice John Paul Stevens. He has used his legal acumen in an attempt to position himself as the tip of the spear against Donald Trump’s opposition to liberal higher education. If any university president should know better than to allow disciplinary processes to be in place that countenance senior faculty sleeping through them, it’s Eisgruber. It’s embarrassing, and he should be livid.
Second, the binding circuit precedent in this case was an opinion called Doe v. Princeton (sound familiar?) known as Princeton III, that is, the third such opinion in that litigation. It seems that Princeton has become a regular player in the Third Circuit.
This should come as little surprise. Look at Princeton’s peer institutions: Harvard is in the First Circuit, Yale is in the Second Circuit, Stanford is in the Ninth Circuit. Princeton is the only very top, left-wing school in a reliably conservative court of appeals. This means that it has a target on its back for lawyers interested in reforming higher education.
Best I can tell, Princeton has never taken that threat seriously. They have infinite money and prestige to spare, but these cases seem to be litigated by their usual higher-ed counsel. Now, maybe conservative appellate lawyers will have no interest in helping Princeton in this kind of case, but has Princeton even tried? There’s a reason Notre Dame always uses conservative Jones Day in the right-leaning Seventh Circuit. Princeton will continue to take a beating in the Third Circuit until it finds lawyers who know how to speak Hardiman.
Of course, such lawyers will also be inclined to tell Princeton to shut down its kangaroo courts already. Perhaps these continued losses are just a cost of doing progressive business.