In her impassioned dissent from the 6th Circuit’s DeBoer v. Snyder decision—the case that eventually would bring marriage equality to all 50 states in Obergefell—Judge Martha Daughtrey wrote, “The framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims . . . If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
The Judge Daughtrey in yesterday’s hearing to consider the appeal of the two University of Cincinnati cases, by contrast, appeared to envision a judiciary powerless to “ensure that rights, liberties, and duties” were not “held hostage by popular whims”— a judiciary that would defer to federal dictates and powerful state institutions.
The usual caveats apply: oral argument doesn’t necessarily predict the outcome. But Daughtrey’s questions were so one-sided as to occasionally present a more aggressive argument than even the university’s lawyer offered. And neither of the other two judges on the panel, George W. Bush nominees Deborah Cook and Julia Gibbons, gave any indication that they would disagree with their colleague in the final opinion. If so, accused students in the 6th Circuit will effectively have no recourse to the federal judiciary.
I’ve written previously about the two Cincinnati cases, in which at times it appeared as if Cincinnati (a public institution) wanted to demonstrate its unfairness. The cases involved allegations of university officials improperly pressuring the police on behalf of the accusers; ignoring video evidence that might have exonerated one of the accused students; and allowing one accuser to testify and then flee the room before the accused student had a (very limited) opportunity to ask questions of her. This was, in short, an extremely well-argued, and remarkably well-documented, claim—one of the strongest cases of procedural misconduct by a university that I have seen on this issue.
To Daughtrey, these sorts of procedures (coupled with the usual restrictions in university processes against cross-examination, discovery of exculpatory evidence, and a fair standard of proof) might be troubling in a criminal justice context, but are acceptable for a university when determining whether or not a student is a rapist. In this clip below, Daughtrey rationalized why:
Even the university (or, for that matter, OCR) never suggested that accused students should be hauled before boards of inquiry—institutions most associated with the military, where members’ constitutional rights can be circumscribed. Daughtrey provided no insight as to why the treatment of a college student accused of sexual assault by another college student should be comparable to a member of the Army facing military discipline.
During the oral argument of Cincinnati’s lawyer, Daughtrey not only refrained from tough questions, but interjected out of concern that he wasn’t doing a good enough job arguing that UC was simply deferring to appropriate federal authority:
Yet, while OCR has ordered colleges to create less fair processes by lowering the standard of proof, allowing accusers to appeal, and imposing interim punishments, the allegations of bias against Cincinnati in this case involved procedures or decisions of the university itself, not of the university acting under OCR orders.
It was left to Joshua Engel, who represented the accused students, to explain to the panel why due process matters.
“The due process protections that exist in the civil system and in the criminal system,” Engel observed, “did not spring out of the earth and are imposed on parties for an arbitrary reason. They’re there because we believe that they’re valuable in the truth-finding process. So every time that you move away from one of these ideas—one of these protections—that are considered . . . a core due process protection, you lose some truth-finding process.”
Based on the oral argument, none of the three 6th Circuit judges cared. It’s more depressing that, it appears, very few universities care about this point, either.