A district court recently denied summary judgment to Johnson & Wales University in a lawsuit filed by an accused student, clearing the case for trial. (Since issuance of the Obama-era Dear Colleague letter, only two trials in this area have occurred—Boston College and Brown—both ending in victories for the accused student.) The trial will focus on whether JWU’s handling of the case violated an explicit promise of fair treatment for the accused that its procedures provided.

As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.

At a minimum, this was an ambiguous case. The accuser, identified in court documents as Mary Smith, waited months before coming forward, alleging sexual assault in the fifth and sixth examples of sexual contact in a long-extinguished relationship. Even then, the charges were initiated not by her, but by her boyfriend, B.K., who then was allowed not to testify at the hearing because he served as Mary’s advisor. Unlike many campus cases, the accused student, identified here as John Doe, vehemently denied the first alleged incident even occurred—and seemed to have support for that proposition from his roommates. And as to the second, which John maintained was consensual, even Mary, according to the JWU complaint report, “was not sure if what occurred was considered sexual assault.”

The affidavits from the three JWU panel members offered identical sentiments and, often, language—suggesting that they either collaborated on the documents after the fact or exhibited a degree of groupthink that raises questions about the fairness of the proceedings.

According to Zmarlicki, her training led her to approach the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” Codding said that she too approached the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” What about Brown? He affirmed that he approached the case “without any predisposition or bias,” allowing him to reach a decision with “an open mind.” The three JWU employees did not explain how they came up with the exact same formulation to describe how they approached to the case. (Couldn’t one of them, at least, have used synonyms to make things less obvious?) The university’s position is that outsiders must trust that when these JWU employees said, using the exact same words, that they acted without bias and with open minds, they actually did so: JWU neither recorded nor kept a transcript of the hearing.

Zmarlicki testified that the panel asked “probative” questions of both John and Mary, but she didn’t say what any of those questions were. According to Codding, the panel asked “probative” questions of each student, but she, too, couldn’t identify any of those questions. And Brown? He recalled the panel asking “probative” questions of John and Mary—questions that his affidavit didn’t detail. Again, couldn’t one of the panelists have come up with another word to describe their questioning strategy?

How did each panelist reach the decision? Zmarlicki affirmed that despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” she made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” Codding, despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” And Brown? Despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” he made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” If this trio were JWU students, they would have been brought up on plagiarism charges.

Zmarlicki claimed that the panel engaged in a “lengthy” deliberation (but couldn’t recall the “precise duration” of their discussions). Codding also deemed the deliberations “lengthy” but couldn’t recall the “precise duration” of their discussions. And Brown? The panel deliberated for a “lengthy” period of time—but he couldn’t remember the “precise duration” of their discussions. These statements make no sense: according to their affidavits, each panelist approached the case in the exact same way and responded to the evidence presented in the hearing identically. If their affidavits are truthful, their deliberations should have taken 60 seconds.

Beyond the absurdity of three people affirming their fairness by using the exact same words, over and over again, to describe what were purportedly their personal recollections, the absence of the complaining witness, B.K., from the affidavits was striking. All three panelists said they read the case file. So they knew that Mary’s new boyfriend filed the original complaint and was a key witness in the case. Yet none expressed concerns that they never heard from him. Nor did they seem worried that they hadn’t been able to hear from John’s roommates, whose versions of events backed John, not Mary. None of the affidavits explain why the panel members didn’t press JWU officials to ensure they heard from all relevant witnesses despite each of them claiming they operated with a “fair mind.”

Perhaps JWU simply assumed a summary judgment win was inevitable. Now, however, the school is left with a trial on a record claiming that three people, from three different parts of the university, described the case and their actions regarding it in identical ways. A legal strategy that presents their own decisionmakers as either mindless automatons or so uncertain of the facts that they needed to have their recollections written by someone else seems like a bad look for any university.

A divided Sixth Circuit panel considered the latest accused student appeal—in a case from Oberlin College. So far, Trump appellate nominees (Thapar, Barrett, and St. Eve in their opinions, Carson in oral argument) have been strongly sympathetic to upholding the rights of accused students. In the Oberlin panel, by contrast, oral argument suggests that a Trump nominee—Chad Readler—is the swing vote.

Among the federal victories for universities, the Oberlin district court opinion, penned by Judge Solomon Oliver (a Clinton nominee), stood out as among the most troubling. The accused student had unusually strong evidence (Oberlin revealing a 100% guilty rate in adjudications, statements from the former Title IX coordinator who was promoted to dean, the accused student’s own Oberlin advisor tweeting out how he believed “survivors,” an OCR inquiry opened against Oberlin a few months before his case). The student also had favorable circuit precedent which cautioned district courts to grant university motions to dismiss on these issues only if the student lacked a “wing and a prayer” (in Baum’s language) of winning, and which stressed the importance of the kind of statistical evidence (Miami) that the Oberlin student possessed.

The Oliver decision, unusually for a motion to dismiss, construed debates over most of these questions in Oberlin’s favor. The 100% guilty rate, for instance? Not a problem, according to Oliver, since there were many cases in which the accused student ultimately didn’t get punished (because the accuser chose not to go ahead with the adjudication, not due to anything Oberlin did). The opinion itself appeared on PACER just after midnight on April 1, almost as if it was rushed to release by March 31.

The panel hearing the appeal consisted of Judges Readler, Raymond Kethledge (W. Bush), and Ronald Gilman (Clinton). Judge Readler hadn’t handled any campus due process case; Judge Kethledge had stayed the order in the Michigan case for the UM president to appear personally in court to defend his university’s policies but hadn’t addressed the substance of the university’s policies. Judge Gilman, by contrast, had issued a concurrence that was in effect a dissent from the due process section of Baum; and had dissented from the Title IX section of the opinion. As Judge Julia Smith Gibbons noted in a concurrence, Gilman seemed to demand summary judgment standards for the motion to dismiss, at least for accused students in Title IX cases.

Gilman didn’t speak in the Baum oral argument, but he asked the first question in yesterday’s hearing—and each of his three questions of the accused student’s lawyer, Chris Muha of KaiserDillon in Washington DC, made clear he intended to apply the spirit of his Baum dissent rather than the actual ruling in Baum to this case. This comment, for instance, featured Gilman downplaying the significance of the 100 percent conviction rate by (very oddly) holding that in cases where the student filed a complaint but did not go forward, Oberlin had actually “a lot of times . . . exonerated” the male student.

 

There was, it’s worth noting, nothing in the complaint to suggest that Oberlin “exonerated”—or even investigated—students who didn’t go through the formal hearing process; in these cases, it seems as if the accusing student chose not to go forward with her complaint. (That Gilman at one point referred to the district court judge as “Judge Solomon” gave a sense of how much he had grappled with the actual record in the case.) The Gilman standard would allow schools that return guilty findings against every male student who’s charged to nonetheless avoid gender bias lawsuits as long as a small number of female accusers choose (for reasons unrelated to university policies) not to seek formal adjudication.

With Gilman a near-certain vote for the school (he asked no questions of Oberlin’s lawyer), the accused student will need the votes of both Kethledge and Readler to prevail. Judge Kethledge seemed deeply skeptical (to put it mildly) of the briefing filed by Oberlin:

 

A bit later, Kethledge commented that he wasn’t personally criticizing Oberlin’s lawyer, Aaron Herzig, who simply had to play the (presumably very bad) “hand” he was dealt.

 

Kethledge also probed the question of whether former Title IX coordinator Raimondo’s decision to appoint as the accused student’s advisor a college dean who tweeted out that he believed “survivors” might suggest a bias in the process.

 

In perhaps the most ominous passage from the oral argument for Oberlin, Kethledge implied that the district court opinion had gotten it wrong by focusing on the gender bias evidence in a “silo” fashion rather than examining it in its totality.

In another favorable comment for the accused student, Kethledge expressed skepticism about the Gilman/Oliver standard that cases where the accused student chose not to go forward with her complaint show a lack of gender bias in cases where an adjudication did occur. Why, he wondered, should Oberlin get “credit” for a decision that had nothing to do with the acts or policies of a college administrator?

 

And in the argument’s most interesting section, Kethledge—implicitly, perhaps, picking up on the arguments offered by Judge Barrett in the Purdue decision—wondered what was contrary to “common sense” about reasoning that an egregiously wrong decision by the school might, in and of itself, suggest a degree of gender bias in the outcome.

 

At that point Judge Readler jumped in, commenting on a factual anomaly of the case—Oberlin’s decision to return a guilty finding based on incapacitation, even though the accuser’s claim was sexual assault by force, and she described an event where she was very much aware of what was occurring. This point aroused Judge Kethledge’s interest as well.

 

Readler’s questions tended to be more informational, making it harder to get his read on the case than Kethledge or Gilman. (He ended the argument, for instance, to asking what specific evidence existed of gender bias for the second prong of the erroneous outcome claim.) If Readler joins a Kethledge opinion, however, this case could yield a significant decision. Given that a dissent, either way, seems a near-certainty, it may be some time before we know.