I appreciate the warm words about the USA Today piece from Stuart and me; I thought I’d also respond to two critical comments I encountered on Twitter.

First was this tweet from Robb Jones, senior vice president and general counsel for claims management of United Educators, an insurance company that represents more than 1000 colleges and universities.

To give a sense of the spirit through which UE approaches these lawsuits, one of its spinoff groups recently published a white paper entitled, “Sexual Assault Claims: Perpetrator as Plaintiff.” The concession that these were “alleged” perpetrators only appeared in the summary.

That said, Jones’ tweet is correct; a slight majority of the decisions have come on motions to dismiss. And in a few of those cases, the district court accepting all well-pled facts as true directly affected the outcome. For instance, the recent Williams decision came out of a complaint that relied (in part) on testimony from a Williams whistleblower whose allegations were untested. The standard also probably affected the outcome in Washington and Lee case (though the university subsequently settled) and might have affected the outcome in the Ohio State case.

If most of the decisions in favor of accused students resembled the Williams decision, it would minimize the significance of the total number of cases in which colleges have been on the losing side. But in the vast majority of the campus due process lawsuits, the core facts either weren’t in dispute or weren’t directly relevant to how the judge approached the motion to dismiss. For obvious reasons, colleges could not challenge the factual basis of the hearing transcript,  stated college policies, or investigative reports. There have been some cases, as well, where the accused student has tracked down additional evidence. (Amherst, for instance, never challenged that the accusing student sent the critical text messages that its investigator failed to discover.) And so, decisions like Amherst, or Brandeis, or DePauw, or CSU-Pueblo could have tone and content leaving little doubt where the judge might be going with the case.

To the extent that Jones sought to imply that the constellation of facts at the motion to dismiss stage favors the student, he almost certainly is wrong. Except in procedurally fluky cases like Amherst, these proceedings usually take place before the accused student can get access to the type of internal college documents or e-mails or officials’ testimony that proved so devastating to Brown or James Madison or (it seems, based on the oral argument in the First Circuit) BC.

This, doubtless, is one reason why so many schools have settled (presuably with the support of their insurance carrier) once they lose a motion to dismiss. And it’s a major reason why motions to dismiss are likely to be the final rulings in most campus due process federal lawsuits in the near future, as well.

Finally, it should go without saying that the relevant precedent in nearly every circuit is deferential, often extremely so, to the college. (The Second Circuit after Columbia is the exception here.) Consider the background to some of the cases that schools have won: Miami, despite Judge Susan Dlott confronting the “troubling” allegation that the university’s chief investigator discouraged an exculpatory witness from testifying; Case Western, despite Judge Christopher Boyko finding a “plausible claim that Plaintiff was innocent of the charges levied against him and that CWRU wrongly found that Plaintiff committed the offense”; Vassar, despite a procedure overseen by a colleague of the accuser’s father, and a hearing (more than one year after the incident) that did not hear from the last two people to see the accused and accuser on the night in question, in a case that solely depended on whether the accuser was intoxication. That, in cases dealing with campus rape tribunals, schools nonetheless have lost more than they’ve won since the Dear Colleague letter is remarkable.

Title IX Project founder Jody Shipper, meanwhile, added the following:

 

Accusers’ rights groups have increasingly defended the Obama administration’s legacy by deeming it a “civil rights” issue. Title IX is, unquestionably, a civil rights law. But unilateral interpretations of that statute by Russlynn Ali or Catherine Lhamon hardly deserve the deference of Loving.

Similarly, that Title IX is an “equity” law doesn’t mean the Dear Colleague letter’s demands were based on equity. If, in fact, campus procedures mirrored civil ones, few could object to the preponderance standard or the accuser’s right to appeal. But accused students lack many of the key protections available in civil cases: the right to discover evidence, including through a deposition; the right to have their lawyers cross-examine witnesses, including the accuser; and the right to have their cases decided in an open forum by an impartial judge and jury. In this respect, the Dear Colleague letter and its successors (rather inequitably) imposed two elements from civil procedure that would yield more guilty findings (preponderance, right of accuser to appeal a not-guilty finding), while discouraging (cross-examination by the parties, existence of hearings) or ignoring (meaningful legal representation, tribunals without a conflict of interest, problems with a lack of discovery in campus tribunals) features that would reduce the chances of wrongful findings of guilt.

With regard to the right of an accuser to appeal, campus Title IX procedures more closely resemble the criminal justice system. Unlike the civil system, most campus Title IX tribunals feature someone paid by the college, either presenting evidence (the campus investigator) to advance the claim of guilt or serving as a de facto prosecutor (as in the cases at UCSD, Cincinnati, and Duke). In short, the accused student faces not only the accuser, but also a college employee of some type. The accused student then is judged by a panel, consisting of people paid by the university, that—per OCR guidance—must be trained. No school has released its tribunal training material, but the few whose contents have leaked (Stanford, Middlebury, Ohio State) have been strongly one-sided.

Forcing a student who overcomes all these obstacles to then prove his innocence a second time is deeply unfair. That’s all the more so given that the appeals generally go before higher-ranking administrators—figures more sensitive to the potential financial (a possible OCR complaint), public relations, or institutional (protests from faculty or campus activists) drawbacks of returning too many not-guilty findings. No one should be surprised, then, to see the type of procedural abuses that have appeared in cases at James Madison, George Mason, and the University of Michigan, when the appeals process overturned an original not-guilty finding.

(Accused students subsequently prevailed in lawsuits against the first two schools; a motion to reconsider, based on new evidence obtained from a deposition by the accuser in an unrelated civil case, is pending after the court initially dismissed the complaint against Michigan.)

Amidst the debate of recent weeks, defenders of the Obama-era OCR policies have unconvincingly maintained that the Dear Colleague letter didn’t change much, because most schools already used the preponderance standard. (In her 2016 letter to James Lankford defending the work of the Obama-era OCR, Lhamon cited only to a FIRE study examined the standards of proof used in around 2 percent of the nation’s schools.) But even the Obama defenders haven’t claimed that before the Dear Colleague letter, a majority of schools allowed accusers to appeal not-guilty findings. No data on this issue exists, but in general, campus disciplinary systems (on all issues) seem to avoid double jeopardy, at least until the Dear Colleague letter.

My apologies if either of these points was unclear in the op-ed.

A final tweet, from campus security consultant (and Sabrina Rubin Erdely source, in support of the thesis of her retracted article) S. Daniel Carter, perhaps best illustrates the mindset of defenders of the Obama-era policies.

As the quote Stuart and I used in the op-ed from Judge Saylor points out, assuming that the two sides in the hearing are a “survivor[]” and an “accused” student presumes guilt (unless the accused student can somehow prove that another student committed the offense that made the accuser a “survivor[]” of sexual assault). The point of the disciplinary hearing, as Saylor notes, is to determine whether the accuser is, in fact, a “survivor[],” and the primary interest of the college is in establishing the truth.

I suppose, however, that if you start with the presumption that students who file sexual assault complaints should simply be deemed “survivors,” the procedures currently used in colleges make some sense.

Although the Obama administration and its media and campus allies billed their crusade to erode due process for students accused of sexual assault a national one, it’s better seen as more of an elite movement. The rate of allegations is far higher at elite schools (Ivies, top-tier liberal arts colleges, Tier One research universities) where an identity politics atmosphere is especially prevalent. Given the disproportionate number of elite institutions in the states of the First Circuit, it should come as little surprise that the area has featured a disproportionate number of due process cases—Brandeis, Amherst, Brown (three cases), Williams, Holy Cross, Clark, and Boston College, as well as UMass and Western New England.

These cases run the gamut—from Judge Saylor’s opinion in Brandeis, the most comprehensive discussion of why campus due process matters from any judge since the Dear Colleague letter, to the opinions in the Holy Cross and BC cases, which essentially gave the institution carte blanche to be as unfair as they wanted. In contrast to the Second or Sixth Circuits (in different directions), First Circuit precedent regarding campus due process claims is ambiguous and leaves considerable leeway for lower-court judges. For instance, Gorman, a 1980s case, is so vague as to provide almost no guidance at all. The panel held for the university, and cautioned that “the undue judicialization of an administrative hearing, particularly in an academic environment, may . . . prove counter-productive.” But the decision also went out of its way to note that “whether the hearing was fair depends upon the nature of the interest affected and all of the circumstances of the particular case” and “beyond the right to notice and hearing, the span of procedural protections required to ensure fairness becomes uncertain, and must be determined by a careful weighing or balancing of the competing interests implicated in the particular case.”

The BC case could provide more clarity—and seems likely, at least based on the oral argument, to produce a victory for the accused student. With one Appeals Court decision favorable to due process (the Columbia case), one unfavorable but very limited decision, with a strong dissent (the Houston case), and one highly unfavorable decision (the Cincinnati case), the outcome from this liberal circuit could carry considerable weight, beyond its effect on the many colleges in First Circuit states.

The facts of the BC case are unique among the scores of campus sexual assault lawsuits since issuance of the Dear Colleague letter in 2011. In October 2012, the accused student (John Doe, or JD, in pleadings), a senior and a student reporter, was covering a campus cruise run by a minority student organization. As he was walking across the cruise’s dance floor (described as dark, with strobe lights), a female student said that she was digitally penetrated, from behind. She turned around, pointed at JD, and started screaming. At that point, JD claimed that another male student told him, “Sorry, dude, that was my bad.” (At the hearing, this student, identified in the record as JK, would deny making this remark, although post-incident texts cast doubt on his testimony.) Based on the female student’s point, JD was detained by security guards and eventually arrested.

Although it took a year and a half, JD was able to prove his innocence, and the prosecutor dropped all charges. Although he was immediately detained and arrested, without a chance to wash his hands, forensic tests of JD came back negative—which would seem to have been impossible if the accusing student had accurately identified him as the person who penetrated her with two fingers. Second, a video of the dance floor, enhanced by a defense expert, showed JD several feet away from the accusing student at the time the assault appeared to have occurred. JD also passed a polygraph test. His lawyer suggested that if an assault had occurred, JK, the other male student, was the perpetrator.

The investigation at Boston College, however, took a different course. The initial report on the incident, prepared by a campus police officer, inaccurately asserted that JD and the accuser were dancing, and that the accuser saw JD assault her. In her first discussion with JD, Dean Carole Hughes refused to hear his pleas of innocence, and so didn’t learn of JK’s existence until the day before the hearing was scheduled. (This refusal would become important to the First Circuit.)

The college investigation consisted solely of interviewing the parties and a handful of witnesses; BC did not wait until the police completed their forensic investigation, nor did they wait until an enhanced version of the dance-floor video could be prepared. The panel also refused to hear from the private investigator that JD’s lawyer had hired. It did, however, hear from JK—who received immunity from the college, but who Dean Hughes told the hearing panel to put “at ease” in his testimony. The disciplinary hearing occurred less than three weeks after the incident; a partition separated the two parties. BC elected not to record the hearing, and so no transcript exists.

JD was found guilty—though, oddly, not of what the accusing student claimed he did. On a Friday, after deliberations, panel chair Catherine-Mary Rivera informed Dean Hughes that her panel was considering returning a “no finding” verdict. Hughes discouraged this course, even though deliberations of the panel were supposed to be “private.” Rivera denied passing the dean’s recommendation on to her colleagues, but the following Monday, after resuming deliberations, the accused student was found guilty. He did not learn of the dean’s intervention until discovery from his lawsuit.

At first blush, JD appeared to have been cleared, since the panel concluded that it seemed “less likely than not” that the “perpetrator achieve[d] penetration”—despite the accusing student consistently saying her attacker had done so. (Her attacker’s “entire two fingers” penetrated her “all the way,” she said; it was “painful,” and “[i]t really hurt when he did it.”) The panel instead found JD guilty of “indecent assault and battery,” an offense for which he had not been charged and which the accuser had not alleged. This language, it came out in discovery, was recommended by BC’s counsel, not by the board itself.

The panel recommended a three-semester suspension, which JD served. He eventually graduated from BC; upon graduation, the family received a commitment from BC’s president that he would re-examine the facts of the case. The president’s designee concluded that the DNA evidence, the videotape, and the polygraph did not “justify a reconsideration of this case.” Though the lawsuit alleged that this non-review further indicated BC’s unfairness, neither the district court nor the Appeals Court seemed interested.

JD’s lawsuit was assigned to Judge Denise Casper, an Obama nominee. In October 2016, she sided with BC in a motion for summary judgment. Casper argued that nothing in BC’s procedures required the BC police to conduct an investigation (as JD had claimed), or for the university to wait for forensic testing or the enhancement of the video to occur. Anyhow, this refusal was irrelevant, according to Casper, since the video evidence was “ambiguous,” and “the proffered forensic evidence would not have been exculpatory given the nature of the charge or the board’s finding of indecent assault and battery.” Casper did not discuss the problem of why the board chose to disbelieve the accuser on the critical aspect of her testimony (how she was assaulted) but believed her on the identity of someone who, according to her own testimony, she never saw committing any offense.

The judge admitted that JD never received notice that he could be found guilty of “indecent assault and battery,” but concluded that as JD’s defense against this allegation was basically the same as his defense against the sexual assault allegation (someone else did it), BC hadn’t breached its contractual obligations. And it’s true, the judge conceded, that after seeing all the evidence, including material the BC panel never had, prosecutors dropped all charges, but since the university used a preponderance standard, this decision from the criminal justice system was irrelevant. Discussions had occurred between a member of the hearing panel and BC administrators during the deliberation process, but Casper contended that this administrative pressure didn’t color the final decision. Finally, she dismissed JD’s Title IX claims by arguing that nothing in BC’s conduct suggested gender bias; and deemed the process a fundamentally fair one.

Casper took a very narrow view of BC’s contractual obligations—as long as the college provided JD with notice of the charges (it did), a hearing (it did), and a tribunal he couldn’t prove was biased (it did), she would “not second guess the thoroughness or accuracy of a university investigation.” She was, however, remarkably non-curious as to why an institution of higher learning would appear indifferent to exculpatory evidence, and her vision of “fairness” was fundamentally different than Judge Saylor’s in Brandeis. And her arguments that BC was in the clear on Title IX because its policies were nominally gender neutral (the policy’s description of accusers as “survivors,” Casper noted, did not specify the gender of the “survivors”) and because BC didn’t find every accused student guilty would block virtually any accused student from filing a Title IX claim.

JD’s appeal, citing the wide gap between the Brandeis and BC decisions, framed the question bluntly, “What level of judicial scrutiny is appropriate for review of federally-mandated rape investigations and trials held at private colleges and conducted by administrators, faculty, and students?” (JD’s appellate brief is here; the school’s response is here.)

Yesterday, oral argument took place, before Judges Juan Torruella, Bruce Selya, and William Kayatta. With the caveat that after the UCSD oral argument, it’s impossible to predict how a panel might rule on a campus due process appeal, the hearing was a disaster for BC, the 180-degree opposite of the infamous 6^th Circuit panel in the Cincinnati case.

Charles Wayne argued for JD; after a somewhat hesitant start, he closed very strongly. The only skeptical questions he received  came when he asserted the district court should have granted JD summary judgment. The judges seemed disinterested in the fundamental fairness argument that played such a role in the Brandeis decision; they seemed more focused on JD’s breach of contract claims.

The opening few seconds of Daryl Lapp’s appearance for BC previewed things to come.

 

When the panel settled down, Judge Selya noted that parts of the complaint dealing with a breach of contract claim, such as the promise that disciplinary panel deliberations be private, had made an “initial impression” on him:

 

Judge Kayatta offered a series of skeptical questions (quite unlike the Sixth Circuit Cincinnati panel, none of the judges had anything supportive to say about BC). He quoted emails from Rivera to Hughes, which strongly implied a violation of the privacy of the board’s deliberations (Lapp claimed the emails were “very cryptic,” though what Kayatta read didn’t seem too cryptic to me):

 

Kayatta also wondered about Hughes’ instructions to put JK “at ease,” which seemed to send a message that JD’s defense (JK did it) shouldn’t be believed (Lapp deemed this an “innocuous comment” that had no effect on the outcome):

 

And he extended Lapp’s appearance by asking a final question regarding the board’s odd decision to not believe the accuser’s claim of what happened to her:

 

Faced with a barrage of tough questions, Lapp had his work cut out for him, but at several points he seemed to concede points to the panel. This exchange involved the allegation of improper interference by Dean Hughes:

 

This exchange with Judge Torruella, near the end of the oral argument, involved the relationship between fairness and excluding exculpatory evidence:

 

Lapp’s discussion of Hughes’ refusal to hear JD’s defense at their initial discussion appeared to misstate BC’s policies:

 

Judge Selya wondered if Lapp used the wrong standard to describe summary judgment:

 

And here Selya rebuked Lapp for an evasive response:

 

To sum things up, the panel seemed most concerned with the issue of breach of contract, regarding Dean Hughes’ refusal to discuss JD’s factual claims in their initial meeting; and emails between Dean Hughes and the panel chair that appeared to lead the chair to take off the table the possibility of a no-finding outcome. The most interesting question in the hearing was the panel’s last of BC, regarding the seeming inconsistency of finding the accused student guilty of an offense the accuser had not, in fact, alleged.

Selya and Kayatta were very active questioners; Torruella was mostly quiet, except for his questions about excluding exculpatory evidence. The panel asked virtually no questions of JD’s attorney, and those they did (whether breach of contract was a more suitable frame for the case than fundamental fairness, whether the evidence suggested the case should go to trial rather than a summary judgment for JD) were of a very different type than those that went to BC.

 

During her four years at the helm of the Office for Civil Rights, Obama appointee Catherine Lhamon gave no sign that she was aware of the wave of due process lawsuits filed by students accused of sexual assault. So it was more than a bit jarring to see Lhamon tweet that “yet another fed court—5th Cir[cuit]—ruled that students disciplined for sex misconduct were not denied due process.”

The “yet another” formulation was particularly odd, given that more than 50 federal or state courts, in preliminary or final rulings, have held in favor of students accused of sexual assault. Was Lhamon implying she was unaware of these decisions? And, if so, what does that say about the bubble in which she operated at OCR? Perhaps she would have been better-served to have taken the meeting—which she initially refused—with FIRE.

More generally, the 5^th Circuit opinion did little to advance Lhamon’s cause of eroding due process protections for accused students. The suit, filed by two students at the University of Houston, departed from the norm; of the 170 or so due process lawsuits filed since the Dear Colleague letter was issued in 2011, these two plaintiffs (then dating, now married) seem to have the least claim to a wrongful finding on the facts.

That background—that the accused students probably were guilty—proved critical to the case. Writing for the majority, Judge Stephen Higginson (an Obama nominee) deferred to Houston’s judgment. But he did so in a way that all but cabined his holding to cases where the accused student couldn’t make a plausible claim of innocence. “The unique facts of this case,” he maintained, “render it unnecessary that we draw any determinative line regarding sufficient procedures in state university disciplinary cases.” A bit later, citing the important Columbia case from the 2^nd Circuit, Higginson detected a “stark contrast” between the Houston case, and others, featuring “allegations of student innocence.”

The 5^th Circuit decision was also the first Appeals Court due process decision to produce a dissent. The Columbia case was decided 3-0 for the accused student; the deeply troubling Cincinnati case—where the judges did actually embrace Lhamon’s anti-due process agenda—was 3-0 for the school.

The dissent came from Judge Edith Jones, who described the Houston case as “the canary in the coal mine” about the loss of rights for accused students. Dismissing her colleagues’ basic argument (that because the accused students “were guilty, they got enough due process”), she faulted the panel for not examining the “background” to the Houston case—the efforts of the Obama administration’s OCR. Jones noted how the Dear Colleague letter, adopted without going through the notice-and-comment process, featured an “extremely broad definition” of sexual harassment and urged procedures that were “heavily weighted in favor of finding guilt.” Given that Houston “largely tracked” OCR’s mandates, rather than developed its procedures out of academic deliberations, Jones correctly noted that the university’s actions deserved no deference because of its character as an academic institution.

It was little surprise, then, that the Houston procedure was structurally unfair. Jones recommended that colleges and universities distinguish between the investigation and adjudication process, raise the standard of proof to clear and convincing evidence, and allow full legal representation for accused students. None of these changes, Jones observed, would “significantly impede the disciplinary process.”

Jones’ conclusion: “The University wants to have it both ways, degrading the integrity of its factfinding procedures, while congratulating itself for vigorously attacking campus sexual misconduct. Overprosecution is nothing to boast about.” Given that the majority framed its holding so narrowly, it had no real response to this point.

Degrading integrity of procedures and overprosecution were hallmarks of Lhamon’s tenure at OCR. Perhaps next time she tweets a due process decision, she’ll read the entire decision, and dissent, rather than just a summary.