Today, the Third Circuit heard its first direct appeal of a campus due process lawsuit. (Two other post-Dear Colleague lawsuits have come before the Circuit, but on tangential issues—a claim of qualified immunity in the William Paterson case, and a question of the powers of the Bucknell Police Department in the Bucknell case.) This case involved an African-American student from Clarion University in Pennsylvania (a public institution). The district court granted summary judgment to Clarion on all counts, including Title IX, due process, and equal protection. The student appealed.

The result was a lively oral argument that went nearly 25 minutes beyond the allotted time. Clarion becomes the sixth lawsuit from an accused student awaiting a decision before an Appeals Court. Three (Oregon, Dayton, and UMass) appear to be near-certain or likely defeats. A fourth (Purdue) featured an oral argument highly sympathetic to the accused student, but no opinion has appeared nearly six months later from a circuit that normally works more quickly. A fifth (Maryland) was difficult to call—as was today’s Clarion argument. Like the Maryland oral argument, however, one judge appeared strongly inclined toward the university position, leaving the accused student little margin of error.

The Clarion case presented a somewhat unusual fact pattern in the array of due process lawsuits: the accused student, Tafari Haynes, was arrested and faced criminal charges as Clarion moved with lightning speed to conduct a Title IX adjudication. The rush to act was puzzling because Haynes already was suspended, and thus posed no threat to campus safety; and the parties were awaiting a DNA test that seemed likely to shed light on the accuser’s claims. (The DNA tests would show no match to Haynes, raising the possiibility of actual innocence, and all charges were dropped after the accuser decided she did not want to proceed with the case.)

Clarion’s handling of the Title IX adjudication process raised a number of red flags. Significant allegations of bias existed against the investigator, Matthew Shaffer, who repeatedly described the accuser as a “survivor” even though he conducted no investigation into the case. Shaffer also requested testimony from an “expert” witness—from a local rape crisis center—who had no familiarity with the case. The accuser said that Clarion’s president had told her that Haynes would be expelled before the hearing took place. The chair of the hearing panel—before the decision was made—declined to ask the accuser any questions, instead informing her, “I’m also sorry that this happened to you and that you’ve had this experience, and I wish you the best, I really do.”

On another front, between 2009-2013, seven of the twelve students tried for sexual misconduct (Clarion called its procedures a “trial”) were African-American, even though African-Americans made up only 5.9 percent of the student body.

Critically, however, Haynes acted on advice of counsel to avoid the possibility to self-incrimination, and did not participate in the hearing. That was enough for the district court to dismiss his due process claim (“Plaintiff can have little complaint about the [discipline board’s] ultimate decision, since he failed to appear and give his side of the story or submit a written statement”). Judge Billy Roy Wilson also found “no constitutional right to active participation of counsel in student disciplinary hearings, even when the student is facing concurrent criminal charges.” And he dismissed Haynes’ equal protection claim on grounds that his statistical evidence that African-American students were disproportionately charged showed, at most, “evidence of bias or prejudice within the student body.”

The Third Circuit panel that heard Haynes’ appeal consisted of Thomas Ambro (Clinton), L. Felipe Restrepo (Obama), and Morton Greenberg (Reagan). Haynes might be able to pull through with a 2-1 victory. But he also could lose 2-1, or suffer a 3-0 defeat focused on his decision not to attend the hearing. Joshua Engel argued for Haynes; Harry Hopkirk argued for Clarion.

Restrepo seemed highly likely to side with Clarion; he repeatedly wondered whether, since Haynes didn’t appear at the hearing, the student had forfeited his right to make a subsequent due process claim.

This line of questioning recalled the recent UMass case before the First Circuit, where the panel’s insistence that the accused student needed to have made a (futile) request for a right to cross-examination indicated a likely defeat.

The panel additionally pressed Engel on the consequences of Haynes’ non-attendance, albeit in an odd way. Based primarily on a single footnote in Clarion’s brief, the judges seemed open to believing that it was at least possible that Haynes’ criminal attorney could have shown up at the hearing, and then been allowed by Clarion officials to participate and ask questions of the accuser. (Clarion’s general rules don’t allow cross-examination, and prohibit a student’s lawyer from speaking in the hearing.) While anything is possible, I’m not aware of any Title IX case in which a university, at the last minute, has changed its procedures in such a fundamental way to grant more procedural protections to the accused. The probability that Shaffer would have done so, given his overall record in the case, would seem to be close to zero. Each of the panelists, however, and especially Restrepo and Greenberg, appeared to believe otherwise. Here’s a screenshot of the relevant section of Clarion’s code:

To the extent that the court concludes Clarion might have allowed cross-examination, the university would seem likely to prevail.

Clarion’s claim that cross-examination might have been allowed, however, produced a remarkable exchange between Judge Ambro and Hopkirk, where Clarion’s attorney eventually had to admit that the university had never informed Haynes or his attorney that the university might modify its procedures to allow the lawyer to conduct cross-examination:

Ambro, in general, appeared sympathetic to the idea that the Sixth Circuit got it right, and that in campus sexual assault cases, there should be some form of cross-examination.

Ambro’s dogged questioning style also propted Hopkirk to concede that Shaffer acted as a “prosecutor”—even though Clarion rules describe him as an investigator:

This latter point prompted the most favorable question to Haynes’ position from Judge Greenberg; the judge noted that in an administrative matter, the university was supposed to be neutral before the end of the adjudication process:

At other points in the oral argument, however, Greenberg seemed much less inclined toward Haynes’ position. He joined Restrepo in suggesting that Clarion might have allowed Haynes’ lawyer to conduct cross-examination if the lawyer had appeared for the hearing. He seemed unconvinced that a “victory” for Haynes before the Appeals Court would do the student any good. And he pressed Engel on the degree to which Clarion’s policies resembled those of other schools (as Engel noted, they did), raising the possibility that he worried about a broad decision that might extend well beyond the facts of this specific case.

Because Greenberg was phoning into the hearing, his participation at times seemed somewhat disjointed. Given Restrepo’s line of questioning throughout the session, Haynes would seem to need Greenberg’s vote to prevail.

The panel, intriguingly, spent several minutes discussing possible remedies–an issue, obviously, that would be relevant only if Haynes prevails. Greenberg asked several questions in this section of the argument.

Audio of the full oral argument is at this link.

At the Appeals Court level, the next oral argument in a lawsuit from an accused student will come from the Seventh Circuit, in the Columbia College-Chicago case.