[Update, 11 October: Without recorded dissent, the Sixth Circuit denied the University of Michigan’s request for an en banc rehearing of the case.]

[Update, 7 September: As expected, in a strong ruling, the panel ruled against Michigan on due process grounds–but also did so on the Title IX count, in a more robust manner than had seemed likely after oral argument.]

The Sixth Circuit appears poised to rule again for an accused student, in a lawsuit from the University of Michigan. Despite the court’s ruling about the importance of cross-examination in Cincinnati, the University of Michigan elected to maintain its Title IX procedures, which deny to the accused student any form of cross-examination. At least two judges on the panel—Amul Thapar and Julia Gibbons—seemed deeply troubled by this approach. (The third judge, Ronald Gilman, a Clinton nominee, asked no questions of either side.) Indeed, Thapar summarized the university’s argument as requesting authority to “set up a kangaroo court.”

This case is an unusually rich one factually (it also involves state litigation by the accuser). UM uses a single-investigator model, in which one person interviews the parties and other witnesses, and then writes a report. In this instance, the investigator found the accused student not guilty. But, exercising her rights established under the Obama-era Dear Colleague letter, the accuser appealed the finding. Using the same evidence as what was before the investigator, but without hearing from any of the parties, the appeals board found the accused student guilty, alleging that the accuser was incapacitated, and expelled him. Judge David Lawson, a Clinton nominee, ruled in favor of the university, largely due to his belief that the accused student was guilty and therefore any procedural deprivations were irrelevant.

Though a factually complex case, Doe v. Baum had a procedural simplicity to it: Doe v. Cincinnati said that some form of cross-examination benefits both the university and the accused student. But Michigan set up procedures in which neither the accused student nor the ultimate university decisionmaker benefited from cross-examination. And cross-examination would have mattered in this case, because the accuser’s medical records contradicted her claim to have been incapacitated.

Deborah Gordon argued for the accused student; the University of Michigan’s lawyer was David DeBruin.

Most questions that went to Gordon were soft or related to the factual record. (There was a section where Judge Gibbons appeared confused by the factual premise of the argument, but that confusion was clarified by the end of the hearing.) By contrast, DeBruin faced repeated, skeptical questions from both Thapar and Gibbons. He repeatedly evaded Thapar’s questions, and repeatedly interrupted Gibbons. (Both judges rebuked him at various points in the argument.) His basic claims:

First: Michigan didn’t have to follow Cincinnati, because an earlier Sixth Circuit case (Newsome) said cross-examination wasn’t required for high school students.

Judge Thapar was part of that Cincinnati panel—indeed, during its oral argument, he quoted from Newsome to show why it wasn’t appropriate to eliminating cross-examination for students accused under Title IX. He accused DeBruin’s position of disregarding “everything courts have ever said, including the United States Supreme Court, about cross-examination.”

 

Second, DeBruin maintained that to the extent Michigan was required to follow Cincinnati, it did so by providing the accused student with a “hearing” (his interview by the investigator) at which he could indirectly present questions to the accuser (which might or might not be asked).

Judge Gibbons seemed flabbergasted by this point: “Making findings based on interviews is not what I think of when I think of a hearing.”

Judge Thapar likewise seemed troubled by this comment, wondering why Michigan didn’t use this process in all cases if it considered the approach so beneficial:

 

Third, DeBruin contended that the accused student had no meaningful due process claim, because the procedures that Michigan supplied him (which denied any cross-examination) were better than those that the Cincinnati court envisioned, and the judiciary needed to defer to university judgment on this question.

This point aroused considerable frustration from both Thapar and Gibbons. After DeBruin accused the judges of second-guessing the appeals board’s factual findings, Thapar replied: “We’re not second-guessing the evaluation; we’re second-guessing the procedures provided to the Plaintiff before you deprive him of his rights. And what our problem is: is we view the due process clause, and what happens all the time—and we talked about it in Cincinnati, in Doe v. Cincinnati, where we said how fundamental cross-examination is when credibility is at issue. And what you’re saying is, “’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”

A couple minutes later, Gibbons added, “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”

Gibbons previously had noted that—given the facts of the case—it was absurd to suggest that the accused student’s rights were protected in the appeals process:

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DeBruin’s time at the podium ended with one final question from Thapar, who noted that if the panel decided that this was a case that came down to the credibility of the accused and accuser, “you lose.” DeBruin’s response: “I agree.”

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It seems likely, therefore, that Michigan will lose, though Gilman’s silence, and Gibbons’ previous authorship of the due process-unfriendly Cummins decisions—perhaps holds open the slimmest of chances for the school.