Likely University Victory at Second Circuit

The latest campus due process case to reach an appellate court came this morning, as Judges Christopher Droney (Obama), Pierre Leval (Clinton) and John Walker (H.W. Bush) heard an appeal from an accused student at Colgate University. The panel was less active than any of the recent Sixth, Seventh, or Ninth Circuit panels, making it somewhat harder to read.

Nonetheless, the discussion left little grounds for optimism that the accused student would prevail. That said, even a victory for the school could be a rather narrow one, given the facts of the case.

In contrast to the recent arguments involving cases at the University of Michigan (CA6) and Purdue University (CA7), the plaintiff in this case was highly unappealing—he faced allegations of sexual assault from three students, involving events that spanned several months. Colgate also elected not to file a motion to dismiss, and prevailed instead at summary judgment, in a fairly lengthy opinion from Judge Lawrence Kahn, a Clinton nominee.

There were, however, credible allegations of unfair procedures—in this case a failure to provide specific notice and (most seriously) Colgate’s decision to have the same panel hear all three allegations, which all but ensured a degree of bias by (at the very least) the time the third case was heard.

Judge Droney seemed concerned with the obvious unfairness of Colgate’s system, twice pressing the university’s lawyer, Laura Harshbarger, on the point.

Harshbarger never really explained why this system was fair (since it pretty clearly wasn’t), other than to repeat her point that, whether fair or not, the procedures weren’t gender-biased.

The only other comment from the bench, from Judge Leval, noted that Harshbarger seemed to be repeating information already in her papers “to tell us how bad John Doe was.” That approach, however, might have been smart tactically, since courts in this area have proven highly reluctant to side with accused students who seem, on the facts before them, to be guilty.

All told, fewer than 10 percent of Harshbarger’s presentation was consumed with questions or comments from the panel.

The panel seemed much more skeptical, on three grounds, of the accused student’s case, presented by Phil Byler. Judge Walker jumped in almost immediately to note that the accused student couldn’t make a due process claim (since Colgate is a private school), and that he seemed chiefly to be using the federal courts to challenge the factual basis of Colgate’s decision.

Judge Droney, meanwhile, pressed Byler on whether the claims of insufficient notice corresponded with the actual case file.

Droney also seemed sympathetic with Judge Kahn’s decision to exclude the expert report of Professor Aya Gruber, noting that most of her comments corresponded to the general issue of gender bias in Title IX investigations rather than the specifics of Colgate’s conduct.

While the court seems likely (although not certain) to side with Colgate, it could do so in differing ways. A fact-specific decision—holding, perhaps, that the accused student was provided with enough notice (without claiming that no notice would be acceptable) and noting that Gruber’s report fell short because it discussed the case in general rather than specific terms—would be a setback for the accused student, but would (as occurred with the Fifth Circuit’s Houston decision) not have much of an effect outside of this case. On the other hand, if the court returned a broad opinion that clawed back some of its holding regarding the relationship between possible gender bias and outside pressure in Title IX cases, the ruling could have major consequences down the road.

A full audio of the proceedings is here.

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