This afternoon, campus due process returned to the 6th 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 6th Circuit to adopt the 2nd 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.