In a frustrating oral argument this morning before the First Circuit, Judges Bruce Selya and William Kayatta suggested that a UMass undergraduate had forfeited his right to bring a due process claim because he hadn’t protested at the time that the university had denied him the right to cross-examination. The two judges seemed more open to the student James Haidak’s other due process claim (that UMass had issued an interim suspension in a haphazard fashion), but it wasn’t clear if, given the facts of the case, the finding would mean anything. The third panelist, retired Justice David Souter, expressed some concerns with the district court’s decision not to allow the student’s Title IX claim to proceed to a jury, but it’s unclear whether the other two panelists shared his misgivings.

The likely result—a university victory on very narrow grounds.

The case is a factually odd one. The allegation involved dating violence in a tumultuous relationship. The accuser’s parents filed the initial allegation against Haidak, and UMass gave him an interim suspension without any sort of hearing. The school also issued a no-contact order between Haidak and his girlfriend—which both of them proceeded to violate numerous times. A hearing was delayed for several months, during which time (in response to pressure from the Obama administration) UMass changed its procedures to eliminate cross-examination in Title IX cases. Haidak was left with a process by which he could suggest questions to be asked of his girlfriend—most of which the university “investigator” didn’t ask (unknown to Haidak). The school found him guilty of dating violence and violating the no-contact order, and expelled him.

He sued; Judge Michael Ponsor sided with the university at summary judgment. The opinion dripped with contempt for Haidak; Ponsor made clear his disgust with the student for violating the no-contact order. (Of course, the girlfriend had violated the order as well, and was never charged by UMass.) Haidak also claimed that the incident of dating violence that was the underlying reason for his interim suspension was actually initiated by his girlfriend, a line of questioning he couldn’t offer at the hearing because UMass didn’t allow cross-examination. UMass did concede that the girlfriend’s story differed from the more alarming one offered by her parents, but this fact didn’t bother Judge Ponsor.

It did bother the panel. Both Judge Kayatta and Judge Selya expressed concern that UMass’ decision to give Haidak an interim suspension without giving him a chance to meaningfully defend himself violated his due process rights. This section of the oral argument was highlighted by an exchange between Judge Kayatta and UMass’ lawyer Denise Burton, where Burton (incredibly) said she didn’t know if UMass still would have been justified in expelling Haidak for violating the no-contact order even if the school had concluded that the order was based on a false allegation.

Both Kayatta and Selya seemed deeply skeptical (to put it mildly) of Burton’s argument. But Selya suggested later on that perhaps Haidak had no remedy, because he was expelled anyway after the hearing.

Justice Souter, meanwhile, was the only member of the panel to raise the Title IX count, and asked questions suggesting a broader view of an accused student’s Title IX claim than that offered by many judges who have approached the issue.

His questions, however, were phrased in such a way that it was impossible to determine whether he was just playing Devil’s advocate or whether he thought Ponsor had gotten the case wrong in district court. And neither Kayatta nor Selya (who were both part of a BC panel that dismissed the student’s Title IX count while siding with the student on other matters) engaged on the issue.

On the key issue in the case, however, Souter was silent and both Selya and Kayatta made clear their sympathies lay with UMass. Even though Haidak had no chance to cross-examine his accuser, and even though UMass had delayed convening a hearing in his case until the procedures changed to deny him a chance for cross-examination, Selya and Kayatta strongly implied that he was out of luck, because this undergraduate student, forced by the university process to defend himself, hadn’t raised a procedural objection at the time.

This, of course, is an argument for allowing accused students meaningful legal representation throughout the Title IX process. But since UMass didn’t do that (the student, UMass’ lawyer conceded, was only entitled to “potted-plant” legal representation in the hearing), it seems unfair to expect an undergraduate to make timely procedural objections.

The full oral argument is here. The First Circuit tends not to be speedy with decisions, so it’s possible we’ll see nothing from this case until the end of the year or early 2020.