Normally, when an Appeals Court holds an oral argument on a lawsuit filed by an accused student, I write up the oral argument with clips. No such detail is required for today’s hearing in the Columbia College of Chicago lawsuit before the 7th Circuit: the university is going to win.
Typifying the oral argument, Judge Ilana Rovner opened the questioning of the college’s lawyer with a question that implied it was “obvious” the college would win on the breach of contract claim.
The accused student drew a fairly unfavorable panel—Judges Rovner (an H.W. Bush nominee but a generally liberal vote on hot-button issues in recent years), Bauer (Ford nominee), and Manion (Reagan nominee on senior status). None of the Trump nominees to the court were assigned to the panel; nor was either of the court’s two full-time Reagan nominees. The case also had an important personal twist: Judge St. Eve, now a member of the court, had decided for the university when she was a district court judge, so a win for the accused student would have required the judges reversing one of their colleagues.
The accused student’s complaint presented strong evidence of innocence and inferential evidence of gender bias (all that he’d likely have at this stage, at a low-profile school like CCC); the panel was disinterested in the first question and seemed to be envisioning a rigorous pleading standard for the second, in which as long as the college could offer some plausible gender-neutral description of its behavior, it was shielded from a Title IX claim. Doe’s lawyer, Eric Rosenberg, was peppered with skeptical questions; the college’s lawyer was asked basic informational questions about the college procedures, and ended his argument by suggesting that this issue shouldn’t be seen through the lens of gender bias, because it was hardly uncommon to see females accuse males of sexual assault (at unnamed institutions other than CCC, not in the record).
The all-but-certain college victory in this case sets up a race to the altar in the Circuit—will the Purdue decision (a likely student win) come first, or will this decision? Whichever appears will be the Circuit’s first decision on this issue since the Dear Colleague letter.