A frustrating oral argument today before a Ninth Circuit panel in Seattle seemed to foretell a victory by the University of Oregon in the first due process/Title IX lawsuit to reach the Ninth Circuit. (The circuit previously had ruled in favor of the University of California, but solely on grounds that the accused student had to sue through state courts first.)
The case involved three basketball players at the University of Oregon. The case (summarized here by the Oregonian) was an ugly one; it certainly seemed possible that the accused students both were guilty and received an unfair process. The district court, in a ruling from Judge Michael McShane, issued one of the most aggressively pro-university opinions of any of the nearly 300 federal lawsuits filed by accused students since the Dear Colleague letter. The students then appealed.
They did not get a particularly favorable draw: two Clinton nominees (Susan Graber, Margaret McKeown) and one Obama nominee (Morgan Christen). While the panel did not seem particularly enthusiastic about Oregon’s case, there was nothing in the oral argument to suggest that a victory for the accused students was likely.
Judge McKeown got things started by saying she thought that Second Circuit’s Columbia decision was simply “wrong.” Given that the students’ brief had relied fairly heavily on Columbia, this wasn’t a good start.
The high point for the accused students came in this exchange between Judge Christen and Oregon’s general counsel; Judge Christen (correctly) seemed unpersuaded by Oregon’s claim that because the students were just accused of violating the disciplinary code, there really wasn’t much reputational harm.
The argument overall, however, mostly occurred at a frustrating level. Oregon’s general counsel appeared intent on obscuring the issues at play (at one point, Judge Christen rebuked him for bringing material in from outside the record). The complaint in the case wasn’t particularly clear, vexing all three judges at various points in the argument. And the accused student’s lawyer devoted more than 20 percent of his oral argument time to a Title IX selective enforcement claim for which he could not produce any specific evidence from his complaint. It was a very curious tactical deicsion, especially given the due process concerns regarding a lack of cross-examination in the case.
If the university seems likely to prevail, the manner in which it does so could be quite significant. Because of the peculiar facts of this case, the court could choose to render an exceptionally narrow decision. (The students in effect entered into a plea bargain with Oregon, choosing not to face a full-blown hearing; and because they withdrew from school, the university appears never to have kicked any of them out of classes, though the record was unclear on one of them.) A ruling that students who don’t go through the full process forfeit their right to a due process claim would have little impact beyond the facts of this case. Similarly, it’s possible the accused students could lose their erroneous outcome Title IX claim on the first prong, since it was unclear whether they actually presented much evidence the university got the decision wrong.
On the other hand, there are enough troubling facts in this case–a rush-to-judgment statement from the UO president, a guilt-presuming campus atmosphere, very one-sided campus procedures–that a comprehensive ruling in Oregon’s favor could foreclose a wide range of lawsuits from accused students in the Ninth Circuit.