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.