A frustrating oral argument today before a Ninth Circuit panel in Seattle seemed to foretell a victory by the University of Oregon in the first due process/Title IX lawsuit to reach the Ninth Circuit. (The circuit previously had ruled in favor of the University of California, but solely on grounds that the accused student had to sue through state courts first.)
The case involved three basketball players at the University of Oregon. The case (summarized here by the Oregonian) was an ugly one; it certainly seemed possible that the accused students both were guilty and received an unfair process. The district court, in a ruling from Judge Michael McShane, issued one of the most aggressively pro-university opinions of any of the more than 250 federal lawsuits filed by accused students since the Dear Colleague letter. The students then appealed.
They did not get a particularly favorable draw: two Clinton nominees (Susan Graber, Margaret McKeown) and one Obama nominee (Morgan Christen). While the panel did not seem particularly enthusiastic about Oregon’s case, there was nothing in the oral argument to suggest that a victory for the accused students was likely.
Judge McKeown got things started by saying she thought that Second Circuit’s Columbia decision was simply “wrong.” Given that the students’ brief had relied fairly heavily on Columbia, this wasn’t a good start.
The high point for the accused students came in this exchange between Judge Christen and Oregon’s general counsel; Judge Christen (correctly) seemed unpersuaded by Oregon’s claim that because the students were just accused of violating the disciplinary code, there really wasn’t much reputational harm.
The argument overall, however, mostly occurred at a frustrating level. Oregon’s general counsel appeared intent on obscuring the issues at play (at one point, Judge Christen rebuked him for bringing material in from outside the record). The complaint in the case wasn’t particularly clear, vexing all three judges at various points in the argument. And the accused student’s lawyer devoted more than 20 percent of his oral argument time to a Title IX selective enforcement claim for which he could not produce any specific evidence from his complaint. It was a very curious tactical deicsion, especially given the due process concerns regarding a lack of cross-examination in the case.
If the university seems likely to prevail, the manner in which it does so could be quite significant. Because of the peculiar facts of this case, the court could choose to render an exceptionally narrow decision. (The students in effect entered into a plea bargain with Oregon, choosing not to face a full-blown hearing; and because they withdrew from school, the university appears never to have kicked any of them out of classes, though the record was unclear on one of them.) A ruling that students who don’t go through the full process forfeit their right to a due process claim would have little impact beyond the facts of this case. Similarly, it’s possible the accused students could lose their erroneous outcome Title IX claim on the first prong, since it was unclear whether they actually presented much evidence the university got the decision wrong.
On the other hand, there are enough troubling facts in this case–a rush-to-judgment statement from the UO president, a guilt-presuming campus atmosphere, very one-sided campus procedures–that a comprehensive ruling in Oregon’s favor could foreclose a wide range of lawsuits from accused students in the Ninth Circuit.
So it’s probably not surprising that the new proposed Title IX regulations generated exclusively negative commentary from congressional Democrats.
Eleven Democratic senators (including Senator-elect Jacky Rosen) criticized the proposed regulations, often in inflammatory terms, while rarely providing specifics.
For instance, Dianne Feinstein: the longtime California senator claimed (without saying how) the proposed regulations would “silence victims,” and “drown out the voices of victims in favor of their accusers.” (It appears that she meant to end her statement with: “the students they accuse.”)
Ron Wyden claimed that that regulations would be “stifling” rather than “empowering survivors.” Jeanne Shaheen claimed that the proposed regulations would discourage survivors of sexual assault from reporting the crimes against them, but did not explain why.
Patty Murray (unsurprisingly) was opposed. So too were similarly ardent foes of any type of fair treatment for accused students, Bob Casey and Kirsten Gillibrand.
Bob Menendez’s hostility to fairer treatment for accused students was particularly notable given how the New Jersey senator benefited from the due process given to the accused in his corruption trial.
Other Senate critics of the regulations included Maggie Hassan, Jacky Rosen, Mark Warner, and Richard Blumenthal.
Not a single Senate Democrat mentioned the importance of due process, the presumption of innocence, or the need to ensure that both sides had full access to evidence in Title IX adjudications. Only one—Wyden—pointed to cross-examination, in the context of suggesting the procedure was a bad thing.
In the House, likely Speaker Nancy Pelosi issued an extraordinary statement, attacking the regulations as a document that “denies survivors due process.” Does the incoming Speaker believe that accusers (but not the accused) have a due process right not to be cross-examined? To ensure that the student they accused can’t see all the evidence? All training material? That it’s a violation of an accuser’s due process rights to presume the accused student innocent? She didn’t say. Pelosi promised to “fight this cruel agenda.”
Rep. Raul Grijalva, among the most liberal members of the House, asserted that the due process provisions were “making it easier to protect the perpetrators.”
Rep. Jackie Speier—who previously seemed to challenge the need for Title IX tribunals to recognize the presumption of innocence—deemed herself “disgusted,” and labeled DeVos “a shill for Trump Admin’s slash & burn agenda to gut protections for sexual violence survivors.” She did not explain which provisions of the regulations made her feel this way.
According to Rep. Rosa DeLauro (D-Connecticut), the draft regulations showed how “Betsy DeVos is on the side of those accused rather than the victims.” She did not explain how she reached this conclusion.
When Rep. Joe Kennedy (D-Massachusetts) falsely asserted the regulations would have the accused cross-examining the accuser, he received a correction from the Education Department. Rather than acknowledge his error, he offered a stat implying that the number of campus sexual assaults had risen since the implementation of the Obama policies.
To Rep. Ann Kuster (D-New Hampshire), regulations allowing cross-examination and full access to evidence would “make campuses less safe for all students.” She did not explain how. A handful of other Democratic House members also criticized the proposed regulations.
Two statements, however, stood out. The first came from incoming Education and Labor Committee chair Bobby Scott (D-Virginia). He strongly attacked the proposed regulations. But he did also say, “Institutions must secure due process for the accused.” As far as I know, this throwaway clause represented the first remarks from a Democratic legislator since DeVos took office to even purport to favor due process for accused students.
Then there was public criticism from a Republican officeholder—New Hampshire governor Chris Sununu. In his letter, Sununu built his argument for setting aside the new regulations in part because “we know that 1 in 4 women and 1 in 10 men will be sexually assaulted in college.” It’s not clear how Sununu knows this—even the Obama administration had never offered a 1-in-4 stat for female undergraduates or a 1-in-10 stat for male undergraduates. (Does Sununu believe that the Obama-era policies were so ineffective as to make sexual assault more frequent in the last three years?) In the event, if Sununu really believes that thousands of college students annually are victims of violent crime in low-crime New Hampshire, you’d think he’d have boosted the state police presence on college campuses.
The latest campus due process case to reach an appellate court came this morning, as Judges Christopher Droney (Obama), Pierre Leval (Clinton) and John Walker (H.W. Bush) heard an appeal from an accused student at Colgate University. The panel was less active than any of the recent Sixth, Seventh, or Ninth Circuit panels, making it somewhat harder to read.
Nonetheless, the discussion left little grounds for optimism that the accused student would prevail. That said, even a victory for the school could be a rather narrow one, given the facts of the case.
In contrast to the recent arguments involving cases at the University of Michigan (CA6) and Purdue University (CA7), the plaintiff in this case was highly unappealing—he faced allegations of sexual assault from three students, involving events that spanned several months. Colgate also elected not to file a motion to dismiss, and prevailed instead at summary judgment, in a fairly lengthy opinion from Judge Lawrence Kahn, a Clinton nominee.
There were, however, credible allegations of unfair procedures—in this case a failure to provide specific notice and (most seriously) Colgate’s decision to have the same panel hear all three allegations, which all but ensured a degree of bias by (at the very least) the time the third case was heard.
Judge Droney seemed concerned with the obvious unfairness of Colgate’s system, twice pressing the university’s lawyer, Laura Harshbarger, on the point.
Harshbarger never really explained why this system was fair (since it pretty clearly wasn’t), other than to repeat her point that, whether fair or not, the procedures weren’t gender-biased.
The only other comment from the bench, from Judge Leval, noted that Harshbarger seemed to be repeating information already in her papers “to tell us how bad John Doe was.” That approach, however, might have been smart tactically, since courts in this area have proven highly reluctant to side with accused students who seem, on the facts before them, to be guilty.
All told, fewer than 10 percent of Harshbarger’s presentation was consumed with questions or comments from the panel.
The panel seemed much more skeptical, on three grounds, of the accused student’s case, presented by Phil Byler. Judge Walker jumped in almost immediately to note that the accused student couldn’t make a due process claim (since Colgate is a private school), and that he seemed chiefly to be using the federal courts to challenge the factual basis of Colgate’s decision.
Judge Droney, meanwhile, pressed Byler on whether the claims of insufficient notice corresponded with the actual case file.
Droney also seemed sympathetic with Judge Kahn’s decision to exclude the expert report of Professor Aya Gruber, noting that most of her comments corresponded to the general issue of gender bias in Title IX investigations rather than the specifics of Colgate’s conduct.
While the court seems likely (although not certain) to side with Colgate, it could do so in differing ways. A fact-specific decision—holding, perhaps, that the accused student was provided with enough notice (without claiming that no notice would be acceptable) and noting that Gruber’s report fell short because it discussed the case in general rather than specific terms—would be a setback for the accused student, but would (as occurred with the Fifth Circuit’s Houston decision) not have much of an effect outside of this case. On the other hand, if the court returned a broad opinion that clawed back some of its holding regarding the relationship between possible gender bias and outside pressure in Title IX cases, the ruling could have major consequences down the road.
To date, in federal due process lawsuits, the only statistically significant factor in the outcome of a case is the gender of the judge. Accused students have been on the prevailing side just under 60 percent of the time in decisions from male judges; universities have been on the prevailing side more than 60 percent of the time in cases decided by female judges. Given that today’s Seventh Circuit Purdue argument—Judges Diane Sykes, Amy Coney Barrett, and Amy St. Eve—featured an all-female panel, Purdue appeared to have an advantage. That’s all the more so given one of the judges—St. Eve—had written an aggressively pro-university opinion in the Columbia College-Chicago case.
After oral argument, however, it seems as if the case could go either way, with the likelier outcome being a victory for the accused student. Two of the judges—Barrett and Sykes—were noticeably more skeptical of Purdue’s argument than that offered by the accused student, who was represented by Phil Byler. That said, Sykes also brought up specifics of the complaint—the very high due process pleading standard for college students in the 7th Circuit, the fact that the complaint didn’t allege direct governmental pressure to crack down on sexual assaults at Purdue—that might salvage a university victory. The likeliest outcome would seem to be a 2-1 victory for the accused student (and perhaps even a 3-0 victory on due process grounds), but only if Sykes and Barrett can be convinced that the student has grounds for pleading a due process claim.
The facts of the case were unusually troubling, even in the Title IX realm: the guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred.
As Judge Barrett noted, “It was a credibility contest in which you not only did not hear directly from her, you didn’t even read words that she had written.”
Purdue’s lawyer, William Kealey, conceded that the university’s system had no cross-examination, and didn’t require the accuser to testify, and didn’t even give the accused student a hearing. But, he suggested, this approach either:
(a) didn’t matter, because the accused student wasn’t able to convince the panel of his innocence. Judge St. Eve seemed dubious.
Or (b) didn’t matter, because the accused student based his case on his own credibility. Judge Sykes seemed skeptical of this line of argument.
The Purdue approach, indeed, seemed designed to celebrate unfairness. The university’s lawyer, incredibly, argued that in conducting its TIX adjudication, “Purdue has no reason to do anything except look at the evidence that the [accuser] said was inculpating of [the accused].”
Judges Barrett and Sykes went out of their way to remind Kealey that this case was at a motion to dismiss stage, and therefore the complaint’s allegations needed to be accepted as true. Judge Barrett even accused Purdue’s lawyer of misrepresenting the complaint.
Perhaps the most interesting exchange of the hearing came between Judge Barrett and the Purdue lawyer over what type of evidence is necessary to establish a plausible claim of gender bias. The accused student had touted the fact that CARE (which prepared the accuser’s statement) had posted on its website an article claiming that men, not alcohol, were responsible for sexual assault. Kealey maintained that this was acceptable because CARE had a right to free speech, and because it was only, at most, advocating for sexual assault victims. That generally has been a winning argument for schools, but Judge Barrett didn’t seem to agree:
Kealey spent several minutes at the end of his argument going back and forth with all three judges over whether the court had authority to issue injunctive relief that would wipe out the accused student’s disciplinary record, before eventually conceding that it had the authority. (Kealey took a maximalist approach to arguing throughout the session, which seemed tactically unwise.)
It’s hard to predict the outcome for his case, in part because of Judge St. Eve’s presence on the panel, and in part because the court probably could, if it wanted, cite a combination of the relevant 7th Circuit precedent (Charleston) and Judge St. Eve’s Columbia College Title IX pleading standard to dismiss the case. But Judge Barrett seemed like a clear vote for the accused student, and by the end of the hearing, Judge Sykes seemed to be leaning in that direction as well.
A decision in early 2019 seems possible (unless, of course, Judge Barrett winds up leaving the court if the Kavanaugh nomination collapses).
Draft Title IX regulations were leaked (presumably by a critic of fairer procedures) to the New York Times. The draft regulations remind that Title IX requires schools to be fair to both sides, not just the accuser; they also call for at least a circumscribed form of cross-examination. In these respects, they do nothing more than telling schools to avoid what many courts already have held out as problematic actions by colleges and universities.
The decline of Democratic support (at least among legislators) for basic fairness in campus procedures has been a troubling trend of the past two years. As with the reaction to Betsy DeVos’ decision last year to withdraw Obama-era guidance, there was no support for the new regulations among Democratic legislators. But far, far fewer legislators publicly commented to the Times story (perhaps they’re waiting for revelation of the final regulations.)
As always seems to be the case on this issue, the most extreme reaction came from Senator Kirsten Gillibrand:
Gillibrand has offered no explanation as to what happens in cases where it isn’t clear which party (if any) is a “predator” and which a “survivor.”
The new regulations also generated a negative response from Washington senator Patty Murray, who has emerged as one of the fiercest defenders of the repudiated Obama-era policies:
Murray did not explain how providing basic procedural protections for accused students is “shameful” or “appalling,” or how these procedures would make it harder for victims to seek justice.
The longest response came from Pennsylvania senator Bob Casey, who contended (without specificing how) that the new regulations would violate the Clery Act. Beyond that, he too was heavy on ad hominem attacks (the regulations would “hurt victims”) devoid of substance.
The only other Democratic senators to comment were Jeanne Shaheen and Richard Blumenthan. They too offered non-substantive criticism:
Blumenthal, like his colleagues, didn’t explain why permitting some form of cross-examination, or saying that Title IX requires fairness to both sides, could be deplorable and disgusting.
[Update, 11 October: Without recorded dissent, the Sixth Circuit denied the University of Michigan’s request for an en banc rehearing of the case.]
[Update, 7 September: As expected, in a strong ruling, the panel ruled against Michigan on due process grounds–but also did so on the Title IX count, in a more robust manner than had seemed likely after oral argument.]
The Sixth Circuit appears poised to rule again for an accused student, in a lawsuit from the University of Michigan. Despite the court’s ruling about the importance of cross-examination in Cincinnati, the University of Michigan elected to maintain its Title IX procedures, which deny to the accused student any form of cross-examination. At least two judges on the panel—Amul Thapar and Julia Gibbons—seemed deeply troubled by this approach. (The third judge, Ronald Gilman, a Clinton nominee, asked no questions of either side.) Indeed, Thapar summarized the university’s argument as requesting authority to “set up a kangaroo court.”
This case is an unusually rich one factually (it also involves state litigation by the accuser). UM uses a single-investigator model, in which one person interviews the parties and other witnesses, and then writes a report. In this instance, the investigator found the accused student not guilty. But, exercising her rights established under the Obama-era Dear Colleague letter, the accuser appealed the finding. Using the same evidence as what was before the investigator, but without hearing from any of the parties, the appeals board found the accused student guilty, alleging that the accuser was incapacitated, and expelled him. Judge David Lawson, a Clinton nominee, ruled in favor of the university, largely due to his belief that the accused student was guilty and therefore any procedural deprivations were irrelevant.
Though a factually complex case, Doe v. Baum had a procedural simplicity to it: Doe v. Cincinnati said that some form of cross-examination benefits both the university and the accused student. But Michigan set up procedures in which neither the accused student nor the ultimate university decisionmaker benefited from cross-examination. And cross-examination would have mattered in this case, because the accuser’s medical records contradicted her claim to have been incapacitated.
Most questions that went to Gordon were soft or related to the factual record. (There was a section where Judge Gibbons appeared confused by the factual premise of the argument, but that confusion was clarified by the end of the hearing.) By contrast, DeBruin faced repeated, skeptical questions from both Thapar and Gibbons. He repeatedly evaded Thapar’s questions, and repeatedly interrupted Gibbons. (Both judges rebuked him at various points in the argument.) His basic claims:
First: Michigan didn’t have to follow Cincinnati, because an earlier Sixth Circuit case (Newsome) said cross-examination wasn’t required for high school students.
Judge Thapar was part of that Cincinnati panel—indeed, during its oral argument, he quoted from Newsome to show why it wasn’t appropriate to eliminating cross-examination for students accused under Title IX. He accused DeBruin’s position of disregarding “everything courts have ever said, including the United States Supreme Court, about cross-examination.”
Second, DeBruin maintained that to the extent Michigan was required to follow Cincinnati, it did so by providing the accused student with a “hearing” (his interview by the investigator) at which he could indirectly present questions to the accuser (which might or might not be asked).
Judge Gibbons seemed flabbergasted by this point: “Making findings based on interviews is not what I think of when I think of a hearing.”
Judge Thapar likewise seemed troubled by this comment, wondering why Michigan didn’t use this process in all cases if it considered the approach so beneficial:
Third, DeBruin contended that the accused student had no meaningful due process claim, because the procedures that Michigan supplied him (which denied any cross-examination) were better than those that the Cincinnati court envisioned, and the judiciary needed to defer to university judgment on this question.
This point aroused considerable frustration from both Thapar and Gibbons. After DeBruin accused the judges of second-guessing the appeals board’s factual findings, Thapar replied: “We’re not second-guessing the evaluation; we’re second-guessing the procedures provided to the Plaintiff before you deprive him of his rights. And what our problem is: is we view the due process clause, and what happens all the time—and we talked about it in Cincinnati, in Doe v. Cincinnati, where we said how fundamental cross-examination is when credibility is at issue. And what you’re saying is, “’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”
A couple minutes later, Gibbons added, “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”
Gibbons previously had noted that—given the facts of the case—it was absurd to suggest that the accused student’s rights were protected in the appeals process:
DeBruin’s time at the podium ended with one final question from Thapar, who noted that if the panel decided that this was a case that came down to the credibility of the accused and accuser, “you lose.” DeBruin’s response: “I agree.”
It seems likely, therefore, that Michigan will lose, though Gilman’s silence, and Gibbons’ previous authorship of the due process-unfriendly Cummins decisions—perhaps holds open the slimmest of chances for the school.
As we await a ruling in the first of (at least) three campus due process appeals to go before California appellate courts in the second half of 2018, a second case—involving a guilty finding from Claremont McKenna College—was argued before the Second District Court of Appeal. The oral argument here was not as lopsided as in the UCSB case, but at least two of the justices—Victoria Chaney and Helen Bendix—appeared sympathetic to the accused student’s claim that the process used by CMC was fundamentally unfair.
Neither of the two students in this case came across as particularly appealing; both also had considerable inconsistencies in their portrayal of events. (Counsel for both sides conceded the latter point during oral argument.) The accuser filed her sexual assault claim months after the alleged incident; her version of events contradicted what she had told not only friends at the time but also medical officials; and the story she told CMC officials evolved over time. The accused student boasted of the sexual encounter to friends in a particularly vulgar fashion. He too had inconsistencies in his story, although to a far lesser extent than the accuser.
Under CMC procedures, both parties spoke to an investigator, who in turn produced a report for the hearing panel—of which the investigator was one of three members. A hearing then occurred, at which the accused student testified as to his innocence; the accuser did not appear. The panel found him guilty, and a superior court did not disturb the judgment. The argument before the appeals court focused on three procedural issues—one related to notice, the other two to the adequacy of CMC’s procedures (which were oddly unfair, even for Title IX tribunals, given the dual role of the investigator).
The notice issue was a nuanced one: the accused student conceded that he eventually was told of the central charge against him—that at the tail end of a sexual encounter that was clearly consensual, the accuser claimed that she had withdrawn consent. Initially, however, CMC’s investigator only told him that he was alleged to have violated the school’s sexual misconduct policy, but not in any specific manner. In his first interview, then, he maintained that he had consent for intercourse (which—he didn’t realize—was not the issue the accuser was raising) and did not recall the specific words the accuser had used to indicate consent at the tail end of the incident—because, again, he hadn’t understood this was the focus of the case. The CMC panel would use his initial failure to be clear on the wording of his accuser’s consent at the tail end of his encounter as a reason to doubt his credibility.
His argument, therefore, was that if he had received notice of the actual allegations in his first interview, he would have responded to them clearly, and the CMC panel would have had no reason to have doubted his credibility. This lack of notice was particularly important because it was the only one of the five points raised by the CMC panel that clearly called into question the accused student’s credibility.
The justices did not show much interest in this aspect of the argument—which was unfortunate, since the conduct of the CMC investigator resembled that of some Title IX officials from the thread exposed by Laura Kipnis, withholding meaningful notice from the accused student in the hopes of trapping him into revealing his “guilt.”
Two of the justices, however, were much more engaged on the second procedural point: that in a he-said/she-said case, it was unfair for the CMC panel to have deemed the accuser the more credible of the parties even though she never testified before the panel.
Justice Bendix noted that the basic issue was a “fair process,” and CMC’s insistence that courts should simply defer to educational institutions didn’t hold water.
(That she closed the exchange by referencing the recent Michigan TRO—which was decided after briefing in the case, but which mirrored, to some degree, the issues at Claremont McKenna—was striking.)
Justice Chaney, meanwhile, pointed out that the accuser’s presence in the room was meaningful for determining her credibility, at least for the two panelists who had never met her. “The concern that I have,” she noted, “is the lack of the ability to absorb sensory input by the two judges who were not present during the interviews.”
Only Justice Laurie Zelon seemed untroubled by the accuser’s absence at the hearing, oddly analogizing the case to a domestic violence trial, where critical information might be supplied by the police officer or a counselor.
Later in the argument, Justice Chaney rejected this analogy; Justice Bendix likewise seemed disinterested in it.
CMC’s lawyer, Appala Chopra, pursued an unusual strategy of not meaningfully responding to the justices’ questions about the significance of the accuser’s non-presence at the hearing. She instead chose to focus on issues that the panel repeatedly told her were not in dispute, or on the assertion that Claremont McKenna had a right to develop its own procedures, subject only to evolving restrictions under the common law, as long as it provided some form of notice and a chance to be heard. But Chopra eventually retreated to a claim that CMC’s process provided a fair chance for the decisionmaker to have evaluated the credibility of the accuser because at least one of the panelists (the investigator) had met with the accuser individually.
That line of argument did not seem to persuade any of the justices. Here was Justice Chaney:
Justice Bendix then added that the Sixth Circuit’s Cincinnati decision (about which she spoke sympathetically throughout the hearing) showed a similar concern. When Chopra tried to argue that due process issues were irrelevant to CMC’s position as a private college, Bendix pointedly observed that cases she had cited in her own brief argued otherwise:
It was on this point that Chopra managed to (if only briefly) lose Justice Zelon, who noted that even in domestic violence cases, the police officer or crisis counselor who provided the testimony did not also serve as a juror in the case. Yet CMC allowed a double-dipping role for the investigator, which put the other two panelists, Zelon reasoned, in a “subordinate position.” (Justice Bendix chimed in that the other two panelists were “potted plants.”)
Based on this oral argument, it seems more likely than not that the accused student will prevail, with an opinion focusing on the fundamentally unfair impact of the accuser’s absence from the hearing. But even Justice Bendix, who seemed the most sympathetic of the panelists to the accused students, commented on the need for colleges to balance the rights of the accused with a system that will encourage accusers to report offenses. So there will remain some uncertainty until the opinion is rendered.
Audio of the full oral argument in the case is at this link.