The last two times a due process case came before the 6th Circuit, it was clear by the end of oral argument which side would prevail. In Doe v. Cummins, the panel—and especially Judge Martha Daughtrey—was if anything more forceful in advocating for the University of Cincinnati than the university’s own lawyer. In Doe v. Cincinnati, the three panelists asked the UC lawyer tough question after tough question; the accused student’s lawyer, Joshua Engel, didn’t even have to use his entire time for argument.
In today’s hearing for Doe v. Miami, by contrast, the oral argument left the final outcome uncertain. One of the three panelists, Judge Ralph Guy, scarcely participated, asking only one (seemingly random) line of questions about how the case initially was reported (by the accuser’s friends, to her RA). The other two judges, Karen Moore (a Clinton nominee) and John Rogers (a Bush II nominee), asked tough questions of both sides. In general, Moore seemed more sympathetic to Miami, and Rogers might have been slightly more sympathetic to the accused student, but anything from a 3-0 opinion for the accused student to a 3-0 opinion for the university seems possible.
This case (along with a companion case out of Denison) appeared teed up to determine whether the 6th Circuit would adopt the 2nd Circuit’s important standard in the Columbia decision, which makes it harder for judges to dismiss Title IX complaints by accused students. But the judges scarcely engaged with that issue, focusing more attention on procedural due process, questions of selective enforcement under Title IX, and the factual specifics of the case.
The district court opinion, which sided with Miami, was written by Judge Michael Barrett.
One of the (many) allegations of gender bias brought by the accused student’s lawyer, Eric Rosenberg, was the writing of the appeals officer, a specialist in gender studies. Judge Moore seemed very skeptical (though she also seemed to interpret Rosenberg’s argument far more broadly than it actually was):
Judge Rogers also strongly pushed back against Rosenberg, and implied that he believed sufficient evidence existed (in the accuser’s statement) to justify the finding of guilt. (The accused student in this case was incapacitated and had no memory of the night in question.)
Rosenberg replied that—even if true—these facts suggested that the accuser (who by her own account climbed into bed with the accused student, and voluntarily kissed him despite his incapacitation) also committed sexual assault under Miami’s rules, and yet the university never even investigated her, much less charged her. This response interested Judge Moore, though she wondered if the issue had been preserved for appeal. She returned to the question in an exchange with Miami’s lawyer, Evan Priestle:
Judge Moore also worried that Miami had conflated the role of investigator and adjudicator, though she didn’t ask a followup question of Priestle on that matter after Priestle denied the claim (the Title IX coordinator at Miami chaired the hearing panel). Judge Rogers, meanwhile, had several tough questions for Priestle, to which the Miami lawyer mostly avoided a clear response. The judge showed no interest in the Title IX claim, but did, in first question, worry about the lack of due process inherent in Miami’s procedures:
It’s hard to argue with Judge Rogers on this point, though he also seemed to think that Miami gave more rights than it does (particularly, the right of the lawyer for the accused student to cross-examine witnesses). In the event, Priestle offered an response —he claimed that because the accused student was excessively intoxicated, a fairer process would not have helped him. Judge Moore, to put it mildly, was not persuaded.
And in perhaps the most intriguing section of the hearing, Judge Moore noted how the severity of a sexual assault guilty finding might justify more rigorous procedures under the Constitution.
Some of the remaining oral argument was caught up in very specific aspects of the case; it was impossible to determine what the judges took away from these exchanges.
While a broad opinion on the appropriate standard for dismissing an accused student’s Title IX complaint is possible, nothing in the oral argument suggested that the panel was likely to offer such a ruling—one way or the other.