[Ruling, issued on 9 March 2020, was 3-0 in favor of university; and, contrary to my prediction (below), the court issued a very broad ruling in Denver’s favor.]

Wednesday featured the fifteenth Appeals Court oral argument in a post-Dear Colleague letter lawsuit from an accused student. The Tenth Circuit heard an appeal of a summary judgment victory by the University of Denver—the first lawsuit from an accused student before the circuit. After oral argument, it’s hard to tell which side will prevail. Indeed, of the fifteen oral arguments to date, this panel was by far the toughest to read.

The complaint and the expert report in the case, from University of Colorado Law professor Aya Gruber, presented the story of a single-investigator model run amok, with biased assumptions by the two investigators producing a biased outcome. As Gruber put it, “Nearly all the investigative deficiencies, sloppy reasoning, and inconsistent application of credibility determinants benefit Complainant. Reading the Report, it is as if the investigators were under a directive to collect, manage, and analyze the evidence in the ‘light most favorable to the complainant.’” Of the 35 Title IX cases at DU between the Dear Colleague letter and 2016, every accused student was male; and all but one of the accusers was female.

The DU case involved an allegation of sexual assault through coercion—the accuser claimed that she went to a male student’s room, drunk, and that he told her she couldn’t stay in the room with him unless they had some form of sex. She said she went forward because she was very drunk and feared being punished by RA’s for intoxication if she left the room. There was no hearing or cross-examination of any kind. The accuser gave two statements to investigators (whose report presented neither of them verbatim); despite substantial differences between the statements (in her initial statement, the accuser improbably claimed that the coerced sex might have lasted for almost four hours, all while the accused student’s roommate was nearby), the investigators deemed her credible and found the student guilty.

The accused student sued, but at summary judgment, Judge Philip Brimmer sided with the university. Rejecting allegations of gender bias in a system that, during the first five years of the Dear Colleague letter regime, featured only male accused students, he noted that “not every Title IX complaint results in an investigation or a finding of responsibility.” (This standard would allow universities to defeat Title IX lawsuits simply by finding one student not guilty over a multi-year period.) Brimmer also held that whatever biases existed in the DU system, they came from a pro-accuser mindset rather than a pro-woman mindset. (Again, this was a system in which every accused student over a five-year period was male.)

The Tenth Circuit panel included Judges Robert Bacharach (Obama nominee), Joel Carson (Trump nominee), and Monroe McKay (a 91-year-old senior judge nominated by Jimmy Carter). The appeal raised two issues—Title IX and the question of whether the Dear Colleague letter made DU a state actor and therefore subject to the due process clause. The panel showed no interest in the latter question and seems likely to affirm the district court’s granting DU summary judgment.

The Title IX issue, however, was a far closer call, with each judge asking very difficult questions of both sides.

Phil Byler opened for the accused student; all three panel members, but especially Judge Bacharach, pressed him on whether the summary judgment record actually supported the arguments about gender bias made in his brief, as in this exchange with Bacharach.

If DU wins, this exchange will likely indicate why—that the panel, however they approached the issue theoretically, doubted that the record at summary judgment could not be enough to prove the accused student’s claims.

The questions for DU lawyer Jim Goh, by contrast, focused less on the record itself, and more on the appropriate standard for a Title IX case. Two particularly intriguing offerings came from Judge Carson. His first question implicitly referenced the Purdue opinion, wondering whether the Seventh Circuit’s holistic approach to analyzing gender bias might be the better way to address the question:

As the argument proceeded, Goh fell back on the assertion (common in these cases) that any bias existing in DU’s procedures was pro-accuser bias, rather than gender bias. All three panelists seemed somewhat skeptical of this line of argument, to an extent that could make this ruling a highly significant one if the judges carry their questions to their logical conclusions. (That’s a big if, of course, and it’s entirely possible the judges were simply playing devil’s advocate on this question.) Here was Bacharach:

Here was Carson, wondering about the equal protection component of a policy that as a practical matter only affected male students.

And here was McKay, noting that a campus poster’s emphasis on “rape” (to the effect that regretted sex was rape) suggested a crime where males usually were the perpetrators.

Regarding the poster (both sides said they were unsure if the poster came from the DU administration or from an accusers’ rights student group), Bacharach wondered whether the district court had inappropriately tipped a factual analysis in favor of the school (which filed for summary judgment) rather than the accused student in deciding that it didn’t raise questions of gender bias.

The final exchange of the oral argument, generated by Judge Carson’s second intriguing offering, explored whether Purdue could raise questions about the single investigator model, at least in cases where (like here) the investigators, rather than the accuser, produce a summary of the accuser’s statement. (Oddly, Goh said he hadn’t read Doe v. Purdue, which was decided almost three months ago.) Carson noted that Judge Barrett’s Purdue opinion had noted the potential problems when a university made a Title IX decision that relied not on the accuser’s own words but on a “statement” prepared by potentially biased university employees.

If this case had reached this panel as a motion to dismiss, it likely would have yielded a victory for the accused student. But at the summary judgment stage, the judges seemed torn between what they saw as weaknesses in the student’s factual case and weaknesses in the university’s understanding of Title IX.

In the end, Carson seemed more sympathetic to the accused student, Bacharach seemed to tilt to DU, and McKay was a tough read. But this is a case in which anything from a 3-0 university win to a 3-0 student win seems possible. Based on the questions, a DU win likely would produce an opinion that hewed closely to the facts at hand. But a student win could generate a significant opinion.