To date, in federal due process lawsuits, the only statistically significant factor in the outcome of a case is the gender of the judge. Accused students have been on the prevailing side just under 60 percent of the time in decisions from male judges; universities have been on the prevailing side more than 60 percent of the time in cases decided by female judges. Given that today’s Seventh Circuit Purdue argument—Judges Diane Sykes, Amy Coney Barrett, and Amy St. Eve—featured an all-female panel, Purdue appeared to have an advantage. That’s all the more so given one of the judges—St. Eve—had written an aggressively pro-university opinion in the Columbia College-Chicago case.
After oral argument, however, it seems as if the case could go either way, with the likelier outcome being a victory for the accused student. Two of the judges—Barrett and Sykes—were noticeably more skeptical of Purdue’s argument than that offered by the accused student, who was represented by Phil Byler. That said, Sykes also brought up specifics of the complaint—the very high due process pleading standard for college students in the 7th Circuit, the fact that the complaint didn’t allege direct governmental pressure to crack down on sexual assaults at Purdue—that might salvage a university victory. The likeliest outcome would seem to be a 2-1 victory for the accused student (and perhaps even a 3-0 victory on due process grounds), but only if Sykes and Barrett can be convinced that the student has grounds for pleading a due process claim.
The facts of the case were unusually troubling, even in the Title IX realm: the guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred.
As Judge Barrett noted, “It was a credibility contest in which you not only did not hear directly from her, you didn’t even read words that she had written.”
Purdue’s lawyer, William Kealey, conceded that the university’s system had no cross-examination, and didn’t require the accuser to testify, and didn’t even give the accused student a hearing. But, he suggested, this approach either:
(a) didn’t matter, because the accused student wasn’t able to convince the panel of his innocence. Judge St. Eve seemed dubious.
Or (b) didn’t matter, because the accused student based his case on his own credibility. Judge Sykes seemed skeptical of this line of argument.
The Purdue approach, indeed, seemed designed to celebrate unfairness. The university’s lawyer, incredibly, argued that in conducting its TIX adjudication, “Purdue has no reason to do anything except look at the evidence that the [accuser] said was inculpating of [the accused].”
Judges Barrett and Sykes went out of their way to remind Kealey that this case was at a motion to dismiss stage, and therefore the complaint’s allegations needed to be accepted as true. Judge Barrett even accused Purdue’s lawyer of misrepresenting the complaint.
Perhaps the most interesting exchange of the hearing came between Judge Barrett and the Purdue lawyer over what type of evidence is necessary to establish a plausible claim of gender bias. The accused student had touted the fact that CARE (which prepared the accuser’s statement) had posted on its website an article claiming that men, not alcohol, were responsible for sexual assault. Kealey maintained that this was acceptable because CARE had a right to free speech, and because it was only, at most, advocating for sexual assault victims. That generally has been a winning argument for schools, but Judge Barrett didn’t seem to agree:
Kealey spent several minutes at the end of his argument going back and forth with all three judges over whether the court had authority to issue injunctive relief that would wipe out the accused student’s disciplinary record, before eventually conceding that it had the authority. (Kealey took a maximalist approach to arguing throughout the session, which seemed tactically unwise.)
It’s hard to predict the outcome for his case, in part because of Judge St. Eve’s presence on the panel, and in part because the court probably could, if it wanted, cite a combination of the relevant 7th Circuit precedent (Charleston) and Judge St. Eve’s Columbia College Title IX pleading standard to dismiss the case. But Judge Barrett seemed like a clear vote for the accused student, and by the end of the hearing, Judge Sykes seemed to be leaning in that direction as well.
A decision in early 2019 seems possible (unless, of course, Judge Barrett winds up leaving the court if the Kavanaugh nomination collapses).