On Tuesday, the Fourth Circuit held the twelfth appeals court oral argument in a lawsuit brought by an accused student in the post-Dear Colleague letter era. The case originated at the University of Maryland; it raised important due process concerns because the accused student never had a chance to cross-examine his accuser; and because the university withheld excupatory evidence (the accuser’s initial statement to police). The district court had sided with the university; it’s not entirely clear how the Appeals Court will come down.
The plaintiff in the Maryland case, identified only as John Doe (JD), wasn’t the most sympathetic character: by his own admission, he traded places in bed with another male student after a female student had already fallen asleep (there was some dispute about whether he did this on a dare), and then initiated sex with her. But he was consistent in saying: (1) that he believed the female student consented to the sex, and knew that she was having sex with him (he had a beard, the male student he replaced in the bed did not); and (2) he stopped as soon as the female student withdrew consent.
The accuser went to the police and gave a statement; they declined to bring charges, regarding the incident as consensual. She then filed a Title IX complaint, and the university’s investigator, on the same evidence, concluded she had been assaulted. When asked about this discrepancy, the investigator—not reassuringly—cited the trauma-informed training he had received. Maryland’s procedures had recently been changed to eliminate all cross-examination (since “anyone who has gone through a cross-examination never wants to go through a cross-examination again,” President Wallace Loh explained); the accuser didn’t even bother appearing for the hearing. And the university forced JD to defend with one hand behind his back—it didn’t give him a copy of the police report (in which the accuser’s story differed from what she told the investigator) and it didn’t allow him even to make a statement in his own defense before the disciplinary panel.
At the district court level, JD had the bad luck to draw Judge Paula Xinis, an Obama nominee. At oral argument on the university’s motion to dismiss, Xinis detected no due process problems with Maryland not providing the statement that the accuser made to police, even though this was potentially exculpatory information. After all, the judge breezily suggested, the accused student could have: (a) hired a lawyer, who could have (b) filed a public records request; and (c) somehow received the statement before his hearing commenced. (In the real world, there was no chance of this happening.) In her opinion, Xinis dismissed the due process claim on grounds that an accused student had no right to cross-examination. To sustain her contention, she curiously cited to a Sixth Circuit case that held “a choice between believing an accuser and an accused . . . cross-examination is not only beneficial, but essential to due process.” Of the 167 federal court rulings on this issue since the Dear Colleague letter, the Xinis opinion was one of the two (along with the Purdue decision appealed to the Seventh Circuit) most indifferent to the rights of accused students. As civil liberties lawyer Scott Greenfield observed at the time, Xinis operated under an “approach “suggests that the only way these proceedings could have integrity is to guarantee that they result in Doe being found guilty.”
JD appealed, producing Tuesday’s argument. (You can read JD’s brief here; Maryland’s response brief here.) The panel draw was very favorable for Maryland: Robert King, author of the troubling Mary Washington decision; Obama nominee Stephanie Thacker; and Clinton nominee Diana Motz, for whom Judge Xinis previously had clerked. Motz was also part of the panel that decided against the Duke lacrosse players in their civil suit against Durham.
(An explanatory note: in contrast to other Appeals Courts, which release their audio and sometimes video files the day of the oral argument, the Fourth Circuit doesn’t do so. The audio file was just posted this morning. Ron Schwartz argued for JD; Christopher Lord for Maryland.)
Of the due process Appeals Court arguments, this one was, by far, the least clear in terms of predicting an outcome. Perhaps the most significant due process issue—that in a case that in part revolved around the accuser’s credibility, JD never had a chance to cross-examine the accuser and the appeals panel never saw her in person—barely seemed to register with the panel. Instead, there were lots and lots of questions about details of the case, with conflicting factual allegations. Virtually all of the argument focused on the due process claims; it seems unlikely the panel will reverse the district court on Title IX given how few questions they asked on the topic.
For JD, the most encouraging questions came from Judge Thacker, who asked tough questions of both sides. Just over two minutes into the university’s oral argument, Thacker pushed back on the Maryland claim that the campus hearing board reached credibility judgments. She wondered how this could be given that they never heard from witnesses or allowed JD a chance to cross-examine.
This line of questioning, however, was largely dropped after that point, and the panel didn’t explore Lord ’s (dubious) point that cross-examination wouldn’t have mattered.
The panel spent a bit more time on the other key due process point—that the university had denied to the accused student the exculpatory statement the accuser supplied to police. Again Thacker asked the key question; but, again, she didn’t follow up.
Judge King, meanwhile, often seemed perturbed with the university’s actions, but focused on minor elements of the case. Here, for instance, he was worried about Maryland’s decision to schedule the disciplinary hearing during finals week—an inconvenience, obviously, but not the most serious due process issue in the case. For not the last time, Judge Motz in effect presented the university’s defense more effectively than Lord did.
And here he focused on the university initially sending JD the wrong procedures for the case—prompting Motz to jump in, once again, arguing Lord ’s case for him.
Of the three judges, Motz was the easiest to read, and she seemed inclined to side with Maryland. Her first question strongly implied that she considered JD guilty under virtually any permutation of the facts—a point pushed hard by the university but challenged strongly by Schwartz.
Detailed discussions occurred between the panel and the two lawyers over whether the accused student had a right to call witnesses: Schwartz said he didn’t, Lord said he did, and the judges seemed baffled. Similar detailed discussions came over when JD was informed he could have a lawyer, and what effect JD’s not appearing for a “conference” with the Title IX office had on the case. (The full audio of the oral argument is here.)
The possible outcomes here range anywhere from a 2-1 victory for JD to a 3-0 win for the university. Thacker seems likely to be the decisive vote; if she sides with JD, it would seem that King would follow along. Given how strongly Motz pushed the university’s position, however, a university victory would seem the likeliest outcome. If so, given the egregiousness of Maryland’s procedures, this would be the most important university win of any post-Dear Colleague letter case.