As more and more schools (currently 72 since the Dear Colleague letter, and counting) have found themselves on the losing end of due process decisions, a handful of institutions have resisted in a troubling manner. Rather than acknowledge that court decisions showed the need to reform their unfair procedures, schools instead have maneuvered to neuter an accused student’s efforts to go to court.

The trend started a few months ago at Penn State. After a temporary restraining order blocked the university from suspending a student, the university abruptly announced (without informing the court) that it was withdrawing the student’s guilty finding—but would re-try him, subject to eliminating some (but not all) of the procedural defects in the investigation identified by the court. The accused student’s lawyer filed a contempt motion; the day before the hearing on the motion, Penn State withdrew plans for a new disciplinary hearing for the student.

Then came Texas, where the university president overturned a not guilty finding after the accuser—whose father was a major donor to the school—had filed an appeal. The accused student sued; the judge in the case scheduled a hearing, at which the president was scheduled to testify. Less than a week before the hearing, Texas announced that the president had cancelled his guilty finding, and would submit the accuser’s appeal to another, unnamed Texas administrator. But the court called the university’s bluff, and refused to cancel the hearing. That morning, just before the president was to take the stand, the two sides settled, and the university permanently withdrew the guilty finding.

A common theme to these two cases: Penn State or Texas procedures did not allow a new hearing after the university had adjudicated the case and dismissed an internal appeal. In short, both schools were trying to invent new procedures on the fly to remove procedurally flawed decisions from a court’s jurisdiction.

At least Penn State and Texas had the good sense to ultimately back down. Not so, at least as of now, Pomona College in California. The basics of the Pomona case were depressingly familiar. (You can read the complaint here.) Two students met in spring 2015, and flirted; both had been drinking. (The accuser also had smoked some marijuana.) The two students went back to the accused student’s dorm room.

As the two students became more intimate, the accuser later would say that she had not desired to go forward. She was experiencing, she later claimed, a PTSD-related reaction caused by other alleged sexual assaults she had experienced. Nonetheless, this claimed issue was never communicated to the accused student. So the two students (according to the college investigator’s summary of an interview with the accuser) “ended up in his bed, but she was unsure of how they got there.” The accuser further admitted voluntarily kissing the accused student (who I’ll call JD), while both were shirtless, in his bed.

At that point, the two stories diverged. The accuser claimed that the additional sexual contact was without consent; JD claimed that the accuser consented unequivocally by physically moving his hand down to her vagina. Both sides agreed that to the extent the accuser was experiencing mental turmoil from PTSD, she never communicated that to JD, and JD (who was a college student, not a trained mental health professional) was unaware of it.

The accuser filed a Title IX complaint with Pomona nine months after the incident. (She appears never to have gone to the police.) Under Pomona’s policies, the Title IX coordinator hired an investigator who interviewed the two parties and some witnesses, and produced a report. That document then went to an adjudicator hired by Pomona, who presided over what Pomona procedures call a “hearing.” The accused student was allowed to present questions—five days before the hearing—that the hired adjudicator might (or might not) ask of the accuser.

In JD’s case, the investigator, Li Fellers, spoke to him, his roommate, the accuser, and a couple of the accuser’s friends who said that she told them about her discomfort with the incident shortly after it occurred.

The accused student seemed to have strong evidence. JD passed a lie detector test (which Pomona later would refuse to consider). On the critical issue at play in the case, whether she had denied consent to sexual touching, the accuser gave fundamentally inconsistent statements—claiming in one discussion with the investigator that she had frozen during the encounter and had said nothing to JD, claiming in another that she had clearly said no.

Moreover, Fellers’ own investigation raised questions about the accuser’s credibility. The accuser alleged that JD had stalked her, claiming that at two social events on campus, JD—around 15 feet away from her at one occasion, around 20 feet away from her on another—sought to intimidate her. But the accuser, by her own admission, couldn’t identify someone from beyond 10 feet away, due to poor eyesight, and therefore had no idea whether JD was even in the room. Fellers further reported that a “majority” of the accuser’s own witnesses had “contradicted her accounts” of the harassment claim.

Nonetheless, this concrete demonstration of the accuser’s dubious credibility did not prevent Fellers from producing a report suggesting she had believed the accuser’s claim about sexual assault. During the subsequent Pomona hearing, Fellers admitted that around half of her business came from Title IX investigations—suggesting a strong incentive to stay on the good side of the Title IX coordinators who hire her.

Before the hearing commenced, JD’s lawyer (who wasn’t allowed to represent him at the hearing himself) asked for copies of the witness statements to Fellers—only to discover that Pomona policy doesn’t have investigators retain this information. (It was “typically standard that we don’t record” witness interviews, Fellers would later tell the Pomona hearing. “Clients [the universities] don’t want us to record.” It’s not hard to imagine why.) Instead, Pomona turned over Fellers’ interview notes—but with dozens of redactions, even though Pomona policy provided no grounds for withholding this type of material. Fellers later said that the redactions came from the college counsel’s office.

The hearing was a farce—neither the accuser nor her witnesses appeared. In a passage that recalled the hearing in the 6^th Circuit’s University of Cincinnati case, the adjudicator, Joseph Costa, noted that procedures existed for some indirect questioning of the accuser, but an absent witness could answer no questions. “If she was here,” said he, “you know, it would be a different story.”

Costa added, “One of the big issues for me in this matter is . . . there’s a lot of factual disputes, and a lot of what is here goes to certain factual disputes.” Yet because the accuser chose not to appear for the hearing, Costa never was able to explore concerns he had with her side of the story. Instead, he heard from a dean to whom the accuser had given her initial allegation—and denied multiple questions JD wanted asked, including questions about the accuser’s medical history, which seemed relevant to the case given her unverified claim of PTSD.

In the end, Costa largely accepted the presentation from Fellers’ report, and, absent cross-examination of the accuser (but after a hearing in which he did question JD at length), Costa found JD guilty. He so concluded despite finding that JD “was earnest in his statements at the hearing that he believed he had consent.” When Pomona denied the appeal, the college’s process was over. So JD went to state court.

That the case was assigned to Judge Mary Strobel seemed ominous—Strobel authored a troubling summer 2017 opinion upholding the infamous Occidental guilty finding. (That was the case where the accuser texted a friend—before going to the accused student’s dorm room—saying she was going to have sex, but Occidental found him guilty anyway.) But the Pomona procedures were too much even for Judge Strobel, who noted that the lack of any opportunity for cross-examination raised “serious fairness questions,” and was so “prejudicial” to JD that the college denied him a “fair hearing.” She set aside Pomona’s guilty finding. You can read her opinion here.

Pomona, of course, has the right to appeal an adverse ruling. Instead, in mid-November Title IX coordinator Sue McCarthy informed JD that Pomona was going to re-try him, using a different adjudicator but the exact same evidence (including the Fellers report) from the original case, and under the same procedures that had produced the decision Judge Strobel set aside.

The university did not inform Judge Strobel of this rather startling decision, which appears to violate existing Pomona procedures. Even more remarkably, McCarthy provided no indication that this second “hearing” (which, again, has no authorization under the college’s policies) would include cross-examination of the accuser, the defect identified in Judge Strobel’s ruling.

Indeed, McCarthy placed an extra burden on JD, demanding that he produce a 20-page report responding to Fellers’ original investigative report, including questions for the accuser if she decided to show up for this new hearing.

It’s not hard to see what Pomona is doing here. Just as Penn State and Texas attempted, the message: wrongly accused students can sue, and might even win in court—but the victory will be meaningless, because the school will simply re-do the process, without altered procedures.

This afternoon, campus due process returned to the 6^th Circuit, for the fourth oral argument on the issue (and the second in the last 10 days) since issuance of the Dear Colleague letter. The outcome of the case is hard to predict, because two of the three judges on the panel said very little during the hearing. But it seems highly likely that the third judge—Amul Thapar, a Trump nominee, who at one point in the hearing said that the district judge who dismissed the complaint had “erred”—will vote in favor of the accused student.

The facts of the case, which originated from Denison University (here’s the complaint), were unusually strong for the accused student. Even the district judge who dismissed the complaint, Michael Watson (a Bush II nominee) conceded that “one could plausibly conclude that [the accuser] was not incapacitated the night on which she and [the accused student] engaged in sexual activity and that she consented to that activity.” And even Denison conceded that its initial handling of the case was procedurally improper—although the school found the accused student guilty a second time.

The accuser’s original claim was that another Denison student—nicknamed “Man Bun”—had given her a date rape drug at a February 2015 fraternity party. (The record is silent on whether Man Bun was ever charged, much less disciplined, and Denison’s lawyer conceded that she didn’t know his fate.) But the accused student didn’t even attend the party. He texted the accuser that evening, she responded favorably, and she voluntarily came to his room. The two had sex. The allegation against the accused student came two months later—after the accuser publicly claimed Man Bun had drugged her, and after Man Bun (allegedly) harassed her in response. And it came despite text messages showing the accuser had voluntarily come to the accused student’s room, and contemporaneous witnesses who said that she wasn’t incapacitated, as she subsequently claimed.

Judge Watson found no plausible evidence of gender bias, and dismissed the Title IX claim.

This was an unusual oral argument because virtually all the questioning came from Judge Thapar. The only other panel member present, Judge Eugene Siler (a Bush I nominee), asked only three questions, two of which were generic (he wanted each lawyer to identify their strongest case). The third panelist, Judge Helene White (a Clinton nominee) appeared by phone, and asked only one question—favorable to Denison.

Both this case and last week’s Miami case provided the opportunity for the 6^th Circuit to adopt the 2^nd Circuit’s Columbia argument for Title IX pleading standard. The Miami panel demonstrated no interest in this topic, and nearly all the discussion focused on the specific facts of the case and questions of procedural due process. The Denison panel—or, at least Judge Thapar—seemed more interested. In questions to the accused student’s lawyer, Eric Rosenberg, he expressed strong skepticism that evidence existed to sustain either a hostile environment or selective enforcement Title IX claim against Denison, and made clear that the only claim he considered potentially viable was one based on erroneous outcome.

Denison’s lawyer, Natalie McLaughlin, got off to a difficult start and never really recovered. She opened by trying to argue how difficult it is for colleges to adjudicate sexual assault complaints, and claimed they’re sued by both sides. Judge Thapar wasn’t interested, and noted that however difficult the process, colleges can’t discriminate. He also repeatedly noted that at this stage of the process, the court is supposed to construe facts in favor of the plaintiff.

 

It was in this context that Thapar expressed his belief that the district court “erred”—clearly not a good sign for the university.

 

The heart of the oral argument revolved around an off-the-record statement by university housing official Kristan Hausman, the chair of the Denison disciplinary panel, that her fellow panelists needed to weigh the “future of 1000 girls” as they adjudicated the case.

Judge Thapar pressed McLaughlin on how that statement—allegedly made before Hausman found the accused student guilty—couldn’t indicate bias. He repeatedly wondered whether dismissal would be appropriate if, in a case involving a student of color, a disciplinary panelist had told her colleagues that they needed to weigh “the future of 1000 whites” as they adjudicated.

For instance, what if the accused student were a Black Lives Matter activist?

 

Or an Asian-American?

 

McLaughlin initially tried to parry the questions by noting that the particulars of sexual assault meant that the disciplinary committee could appropriately consider such matters, and worry about how finding the accused student not responsible would threaten the community. Judge Thapar was incredulous: “How can that be?,” he wondered.

 

And when McLaughlin attempted to move on, Thapar jumped back in, to point out that such an argument seemed to all but admit Denison was OK with going after accused males.

 

At that point, McLaughlin tried a new argument, suggesting that even if Hausman were biased, other members of the disciplinary panel weren’t. Thapar wasn’t buying it—and, critically, it seemed as if Judge Siler (in his only substantive comment of the day) wasn’t, either.

 

Judge White asked only one question, a seeming effort to rationalize the Hausman statement. McLaughlin eagerly responded. She was a bit more hesitant in answering Judge Siler’s generic question, conceding that perhaps the Columbia case was relevant to the outcome.

 

Based solely on the oral arguments, the likeliest outcome here is a 2-1 victory for the accused student, stressing that the district court made improper inferences in dismissing the case, though Judge Siler’s general reticence makes him a little difficult to read.