Today featured the second of what likely will be five oral arguments in accused student appeals during the 2019-2020 session of Eighth Circuit, which covers Arkansas, Missouri, Nebraska, the Dakotas, Iowa, and Minnesota. (Ironically, between 2011 and 2019, the Circuit hadn’t heard any appeals from accused student Title IX cases.) Today’s appeal, involving a decision from the University of Arkansas, seems likely to yield the most important decision of the five. The panel included Judges Steven Colloton (W. Bush), Bobby Shepherd (W. Bush), and Ralph Erickson (Trump).

Even in the world of dubious Title IX guilty findings, the Arkansas case stood out. The accuser claimed she was incapacitated and therefore couldn’t have consented to sex—but the police officer to whom she reported (she also wanted to pursue criminal charges) found her non-credible, and an Uber driver who drove her to the accused student’s apartment couldn’t corroborate her story either. Arkansas’ Title IX investigation ended with a not-guilty finding—which she appealed to a hearing panel. At that point, the accuser modified her theory of the offense to force and/or incapacitation—and Arkansas not only allowed her to do so, but refused the accused student’s request for clarifying information. (The accuser, by this point, had organized campus protests suggesting Arkansas was indifferent to rape, upping pressure on the university to reach a guilty finding.) At a hearing in which the campus investigator didn’t appear, the police officer testified on behalf of the accused student, and no direct cross-examination occurred, the accused student was found guilty by a 2-1 vote. The university’s own finding, however, couldn’t say whether he ever knew the accuser was incapacitated, and the school allowed the student to graduate. It was almost as if UA simply wanted a guilty finding to appease the campus protesters.

The student sued, seeking to remove the Scarlet Letter from his transcript. The case drew Judge P.K. Holmes, an Obama nominee. In the recent article on campus Title IX litigation from Sam Harris and me, we identified Holmes’ decision in this case as one of the two worst federal decisions in this area since 2011. Holmes conceded there might be a due process claim to cross-examination—but suggested it was trumped by the anti-crossexamination provisions of the 2011 Dear Colleague letter. He didn’t explain why OCR guidance was more important than the Constitution, or why guidance rescinded before the events of the case even occurred was relevant to his analysis. Holmes saw little problem with the accuser changing her story in the middle of the process, suggesting that UA simply allowed more information to come to the attention of the hearing panel. And he dismissed the Title IX count with scant analysis, even doubting whether the accused student—in a case where two of the four UA decisionmakers had found him not guilty—had sufficient evidence to cast doubt on the correctness of the finding. He also granted qualified immunity to UA administrators, but this issue didn’t come up in the Eighth Circuit oral argument.

Heather Zachary argued the case (very effectively) for Doe; Joseph Cordi argued for Arkansas. The panel asked many more questions of Arkansas’ case than Doe’s; Shepherd and Erickson (in particular) seemed more sympathetic to Doe, while Colloton was harder to read. Zachary’s opening section of argument proceeded almost without interruption, but for friendly questioning from Judge Shepherd on whether the district court might have improperly drawn inferences in favor of the university in a motion-to-dismiss ruling.

 

Questioning of Cordi, by contrast, was much sharper, and focused on three issues: lack of notice (due to the shifting claims of the allegation); cross-examination; and gender bias under Title IX. In general, Cordi seemed less well-prepared than did Zachary, though, in fairness, he also received tougher questions.

To begin with, and in sharp contrast to Judge Holmes at the district court, all three of the Eighth Circuit judges seemed skeptical of the wisdom of UA’s guilty finding, above and beyond the need to accept the facts in the complaint. This colloquy involving Cordi and Judges Colloton and Erickson set the tone:

 

Shepherd also seemed troubled that UA had, in effect, shifted the burden of proof to Doe—requiring him to prove consent, rather than requiring the university to prove a lack of consent.

 

Cordi was repeatedly pressed on the issue of notice—a point of vulnerability for the university given UA’s allowing the accuser to change her theory of the offense, and given that Doe was found guilty even though UA acknowledged he didn’t know of the accuser’s alleged incapacitation. This exchange came with Judge Colloton.

 

In what was clearly the most encouraging section of the oral argument for Doe, Judge Erickson sharply rebuked Cordi’s fact-free suggestions that it was wholly implausible, to appease campus protesters, that a university (or, he added, any other entity) would seek to find accused males guilty. (One wonders what academic environment Cordi has been witnessing the past eight years.) Erickson cited the #metoo/believe-all-women agenda to show the absurdity of Cordi’s claim. If Erickson were to apply this sentiment in an opinion, he would join Amul Thapar and Amy Barrett as Trump nominees to aggresively side with accused students.

 

This exchange, between Cordi and Judges Erickson and Colloton, got to the heart of the accused student’s Title IX argument given the specifics of his case–a guilty finding coupled with a punishment that seemed very light if UA actually believed in the merits of its finding. Noting the campus pressure to do more on behalf of female complainants, Colloton wondered, “Why wouldn’t it be plausible that they’ll say, ‘Well, we’re going to have to find more men responsible and maybe we’ll go light on the punishment to kind of smooth things over?'”

 

It seems possible, however, that the panel will not reach the cross-examination count, as seen in the closing section of the argument between Judge Colloton and Zachary. Colloton faulted Zachary for not pleading specific questions that were unasked in the UA hearing, which, of course, Zachary couldn’t do because Arkansas withheld the transcript of the hearing from Doe.

 

The overall take: all three members of the panel (and especially Erickson and Shepherd) seemed to believe that Arkansas wrongly found Doe guilty. All seemed at least somewhat dubious that UA had provided Doe with sufficient notice. And Colloton and Erickson (the latter strongly) seemed skeptical of the district court’s Title IX rationale. They didn’t telegraph their ruling, however, and anything from a 3-0 win to a 3-0 loss seems theoretically possible. But a win for Doe seems the likelier outcome, in what has the potential (if so) to be a very important ruling.