As we await a ruling in the first of (at least) three campus due process appeals to go before California appellate courts in the second half of 2018, a second case—involving a guilty finding from Claremont McKenna College—was argued before the Second District Court of Appeal. The oral argument here was not as lopsided as in the UCSB case, but at least two of the justices—Victoria Chaney and Helen Bendix—appeared sympathetic to the accused student’s claim that the process used by CMC was fundamentally unfair.

Neither of the two students in this case came across as particularly appealing; both also had considerable inconsistencies in their portrayal of events. (Counsel for both sides conceded the latter point during oral argument.) The accuser filed her sexual assault claim months after the alleged incident; her version of events contradicted what she had told not only friends at the time but also medical officials; and the story she told CMC officials evolved over time. The accused student boasted of the sexual encounter to friends in a particularly vulgar fashion. He too had inconsistencies in his story, although to a far lesser extent than the accuser.

Under CMC procedures, both parties spoke to an investigator, who in turn produced a report for the hearing panel—of which the investigator was one of three members. A hearing then occurred, at which the accused student testified as to his innocence; the accuser did not appear. The panel found him guilty, and a superior court did not disturb the judgment. The argument before the appeals court focused on three procedural issues—one related to notice, the other two to the adequacy of CMC’s procedures (which were oddly unfair, even for Title IX tribunals, given the dual role of the investigator).

The notice issue was a nuanced one: the accused student conceded that he eventually was told of the central charge against him—that at the tail end of a sexual encounter that was clearly consensual, the accuser claimed that she had withdrawn consent. Initially, however, CMC’s investigator only told him that he was alleged to have violated the school’s sexual misconduct policy, but not in any specific manner. In his first interview, then, he maintained that he had consent for intercourse (which—he didn’t realize—was not the issue the accuser was raising) and did not recall the specific words the accuser had used to indicate consent at the tail end of the incident—because, again, he hadn’t understood this was the focus of the case. The CMC panel would use his initial failure to be clear on the wording of his accuser’s consent at the tail end of his encounter as a reason to doubt his credibility.

His argument, therefore, was that if he had received notice of the actual allegations in his first interview, he would have responded to them clearly, and the CMC panel would have had no reason to have doubted his credibility. This lack of notice was particularly important because it was the only one of the five points raised by the CMC panel that clearly called into question the accused student’s credibility.

The justices did not show much interest in this aspect of the argument—which was unfortunate, since the conduct of the CMC investigator resembled that of some Title IX officials from the thread exposed by Laura Kipnis, withholding meaningful notice from the accused student in the hopes of trapping him into revealing his “guilt.”

Two of the justices, however, were much more engaged on the second procedural point: that in a he-said/she-said case, it was unfair for the CMC panel to have deemed the accuser the more credible of the parties even though she never testified before the panel.

Justice Bendix noted that the basic issue was a “fair process,” and CMC’s insistence that courts should simply defer to educational institutions didn’t hold water.

(That she closed the exchange by referencing the recent Michigan TRO—which was decided after briefing in the case, but which mirrored, to some degree, the issues at Claremont McKenna—was striking.)

Justice Chaney, meanwhile, pointed out that the accuser’s presence in the room was meaningful for determining her credibility, at least for the two panelists who had never met her. “The concern that I have,” she noted, “is the lack of the ability to absorb sensory input by the two judges who were not present during the interviews.”

Only Justice Laurie Zelon seemed untroubled by the accuser’s absence at the hearing, oddly analogizing the case to a domestic violence trial, where critical information might be supplied by the police officer or a counselor.

Later in the argument, Justice Chaney rejected this analogy; Justice Bendix likewise seemed disinterested in it.

CMC’s lawyer, Appala Chopra, pursued an unusual strategy of not meaningfully responding to the justices’ questions about the significance of the accuser’s non-presence at the hearing. She instead chose to focus on issues that the panel repeatedly told her were not in dispute, or on the assertion that Claremont McKenna had a right to develop its own procedures, subject only to evolving restrictions under the common law, as long as it provided some form of notice and a chance to be heard. But Chopra eventually retreated to a claim that CMC’s process provided a fair chance for the decisionmaker to have evaluated the credibility of the accuser because at least one of the panelists (the investigator) had met with the accuser individually.

That line of argument did not seem to persuade any of the justices. Here was Justice Chaney:

Justice Bendix then added that the Sixth Circuit’s Cincinnati decision (about which she spoke sympathetically throughout the hearing) showed a similar concern. When Chopra tried to argue that due process issues were irrelevant to CMC’s position as a private college, Bendix pointedly observed that cases she had cited in her own brief argued otherwise:

It was on this point that Chopra managed to (if only briefly) lose Justice Zelon, who noted that even in domestic violence cases, the police officer or crisis counselor who provided the testimony did not also serve as a juror in the case. Yet CMC allowed a double-dipping role for the investigator, which put the other two panelists, Zelon reasoned, in a “subordinate position.” (Justice Bendix chimed in that the other two panelists were “potted plants.”)

Based on this oral argument, it seems more likely than not that the accused student will prevail, with an opinion focusing on the fundamentally unfair impact of the accuser’s absence from the hearing. But even Justice Bendix, who seemed the most sympathetic of the panelists to the accused students, commented on the need for colleges to balance the rights of the accused with a system that will encourage accusers to report offenses. So there will remain some uncertainty until the opinion is rendered.

Audio of the full oral argument in the case is at this link.