Earlier this week, a three-judge California appellate panel heard an appeal filed by former USC kicker Matthew Boermeester—at the center of one of the most troubling cases of university procedural unfairness in the post-Dear Colleague letter era. It appears as if the appeals court will side with Boermeester, though all three justices promised openness to USC’s arguments.

The specifics of the Boermeester case are, by this point, well-known. A report reached the university—third-hand—alleging intimate partner violence by Boermeester against his girlfriend, Zoe Katz. Katz was required by the Title IX office to speak to a USC Title IX investigator—and subsequently claimed, in multiple sworn affidavits, that USC misrepresented what she said in the interview. USC immediately suspended Boermeester, and ultimately found him guilty of an offense in which the “victim” said nothing untoward happened. He received no hearing, with no right to cross-examine either the third-hand witnesses the university had or to present his own witnesses. Nor did USC give him any chance to explain during its “investigation” what the university now sees as the key evidence in the case (a grainy security video of the incident).

The process was so unfair that Secretary Betsy DeVos highlighted it in her speech announcing the rescission of the Obama-era Title IX guidance. Terming USC’s treatment of Boermeester “disturbing,” the Secretary described “the story of an athlete, his girlfriend and the failed system. The couple was described as ‘playfully roughhousing,’ but a witness thought otherwise and the incident was reported to the university’s Title IX coordinator. The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better. They dismissed the young man, her boyfriend, from the football team and expelled him from school.”

DeVos concluded her recap of the case by quoting Katz: “’When I told the truth,’ the young woman said, ‘I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.’”

Boermeester sued USC in state court in 2017 (he also has filed a federal lawsuit, which currently is stayed), but drew a superior court judge, Amy Hogue, who has consistently sided with universities in accused student lawsuits. As he appealed, however, the law in California started to change. Several decisions from the California Court of Appeals, including two involving USC, made clear that an accused student needed to have some form of cross-examination, and cast doubt on the single investigator model that USC used. USC was even more vulnerable to these rulings in the Boermeester case because the single investigator was, in effect, the judge, jury, and police in a complaint filed by the institution that paid her check.

The appeal went before a three-justice panel of Tricia Bigelow, Maria Stratton, and John Wiley. As the hearing commenced, the judges put on record that they had issued a tentative ruling (which would the subject of the oral argument) indicating an intent to side with Boermeester. The tentative ruling suggested an agreement “with recent authorities that in a case such as this one, where a student faces a potentially severe sanction from a student disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in person hearing in which he may cross-examine critical witnesses, directly or indirectly, to allow the adjudicator the ability to observe witness demeanor to decide credibility.” USC’s briefing had challenged the wave of recent precedents by suggesting that the case wasn’t about credibility, since the video was sufficient to confirm Boermeester’s guilt. But to the justices, “The surveillance video by itself is not conclusive. The picture is grainy and there is no audio.”

Representing USC, Julie Arias-Young opened her argument by claiming that the panel’s tentative ruling expanded the rights of students accused of Title IX offenses. Justice Bigelow, by far the most active of the panel members, seemed skeptical. She conceded that USC was in a “pickle” because of the wave of 2018 and 2019 decisions in favor of accused students (rulings that occurred after USC elected to deny Boemeester a hearing or any opportunity to confront his accusers). But, the justice noted, that’s the way the “cookie crumbles.”

USC offered two core arguments to try to persuade the panel to reverse its tentative ruling. First, Arias-Young claimed that the five pro-due process California appeals court decisions applied only to students accused of sexual misconduct, not intimate partner violence. No one in the panel seemed particularly persuaded by the first line of argument, although a bit later in the hearing, the justices toyed with limiting principles (which nonetheless would reverse USC’s discipline against Boermeester) in a potential ruling.

Second, Arias-Young suggested that credibility wasn’t key to the case—and, indeed, generally was not a key issues in allegations of intimate partner violence, period. Justice Bigelow seemed dubious.

The bulk of the oral argument revolved around the video, and USC’s claim that this piece of evidence justified the university’s decision to deny Boermeester a meaningful opportunity to defend himself. But the justices also had watched the video, and Justice Stratton remarked that she couldn’t deem the video decisive.

Arias-Young’s desperation to suggest that this case—where the alleged victim, it’s worth recalling, said under oath that nothing untoward happened, and that USC officials misrepresented what she told them—brought her very close to suggesting that because the “grainy” (Arias-Young’s word) video appeared to show Boemeester touching Katz’s neck, that fact and that fact alone was enough to expel him, regardless of his intent. All three justices seemed extremely skeptical of this line of argument—as, eventually, did Arias-Young, when she tried to parry hypotheticals offered by the panel by saying that they differed from the “facts of this case.”

Eventually, Arias-Young’s assertions that the university didn’t need to consider the context as long as it had a video collapsed under its own weight. Justice Bigelow asked if—as seemed to be the logical application of her argument—anytime one USC student placed his hand on another student’s neck in what might (or might not) have been a forceful manner, he’d have to be expelled. Arias-Young’s response? “I guess it would depend on what it is.” But she had spent the previous five minutes arguing exactly the opposite—that the context in such cases didn’t matter, and therefore Boermeester didn’t deserve hearing.

Arias-Young’s time at the podium concluded with a complement from Bigelow—the USC lawyer had argued a good case, but the university was in a tough position given the recognition by five state appellate courts as to what the law required when adjudicating Title IX allegations. As a result, Bigelow predicted, USC was “probably” going to lose.

That sense was reaffirmed when Boermeester’s lawyer, Mark Hathaway, had five minutes in rebuttal—and didn’t receive one question from the panel. (Hathaway had opened the oral argument by urging the court to heighten the rights of accused students facing indefinite interim suspensions, but the panel didn’t seem terribly interested in doing so.)

If the panel follows through with its tentative opinion—as, based on the oral argument, all three justices appeared inclined to do—this would be a major victory, both because of the high-profile coverage the expulsion received and because USC’s procedures are particularly egregious in this area. The decision, though, would only reverse Boermeester’s discipline. The court can’t negate the rumors and stigma that affected his reputation, or restore his senior season of eligibility, or his chance at playing in the NFL.

As Justice Bigelow stated at the hearing, Boermeester had “a bright future.” In this respect, Boermeester’s ongoing battle provides a reminder of the enduring effect that unfair Title IX tribunals can have on accused students.

Yesterday, the Ninth Circuit heard oral arguments in an appeal filed by an Arizona State University graduate student, Paul Schwake, who was found guilty of sexual misconduct by ASU—harming his post-university career as a researcher. It seems likely, though far from certain, that the university will prevail, though both parties got tough questions. The most striking aspect of the hearing was the performance of Judge Milan Smith, a Bush nominee, who repeatedly misrepresented the record to claim that Schwake had no case.

The specifics of this case were a little unusual because Schwake was a PhD student, doing research in a lab. So too was his accuser, with whom he had a brief romantic relationship. When the accuser filed her complaint, ASU (which was under an investigation from the Lhamon-era OCR for another case) imposed swift punishment, carrying about a barebones investigation that deemed Schwake responsible without (allegedly) considering his exculpatory evidence. The university also denied Schwake all access to his lab (ruining his experiments), rather than simply ensuring that he did his research when the accuser wasn’t there. Word on campus allegedly spread about his fate, harming his reputation; according to the complaint, one ASU professor, Thomas Seager, told his class that Schwake had been “convicted” and referenced specific details about the case.

Under ASU policy (and Arizona law), since the investigation had recommended expulsion, Schwake was entitled to a hearing, with significant procedural protections—protections he planned to use. Rather than give Schwake a chance to defend himself (and, perhaps expose how shoddy ASU’s investigation had been), ASU manipulated the procedures. A university administrator downgraded Schwake’s punishment so that he no longer was threatened with expulsion. He therefore also was no longer entitled to have a hearing. He asked for a chance to appeal this decision; no forum existed to hear his appeal. He then received his PhD., although he remained banned from campus.

The case went before Judge Steven Logan, an Obama nominee, who sided with ASU in a short, uninspiring opinion. Logan dismissed the due process sections of the complaint on grounds of qualified immunity, claiming that accused Arizona students have no property or liberty rights associated with continued enrollment in grad school. He dismissed the Title IX section of the complaint with scant analysis.

The appeal took a circuitous route to the Ninth Circuit. Schwake appears to have had financial problems, and parted ways from his original lawyer. Eventually, Aaron Block took the case pro bono, provided supplementary briefing, and argued very effectively. The panel included Judges Kim Wardlaw (Clinton nominee), Milan Smith (W. Bush nominee), and Patrick Bumatay (Trump nominee).

According to Judge Smith, this was an open-and-shut case—Schwake’s complaint didn’t even belong in court. Dripping with condescension in deeming Schwake “upset” with the outcome, Smith explained  that the student had entered into a settlement with ASU: in exchange for receiving his degree, he forfeited the right to any disciplinary hearing. (Smith even suggested that the non-existent settlement gave Schwake access to his lab, a false claim that seemed to bewilder even ASU’s lawyer.) Second, to the extent Schwake’s reputation was harmed, it came about because he filed the lawsuit, not due to anything that ASU did.

The only problem? Smith was wrong on both counts. No settlement existed (ASU had changed the punishment unilaterally), and Schwake’s reputational harm, as documented in his complaint, predated the filing of the lawsuit. (The idea that a student harmed by his university can be blamed for reputational damage caused by filing a lawsuit to address the harm is, in and of itself, a strange argument.)

Even when presented with the facts, however, Smith didn’t back down, announcing that Schwake should have, like Texans at the Alamo, refused the “settlement.”

Finally, in his rebuttal, Block read the section of the complaint confirming that no settlement occurred. Smith then, wildly, suggested Schwake should have refused his degree if he wanted a hearing. But even in Schwake had done so (and Smith didn’t explain how a student could refuse a degree that the university had already conferred), ASU would have been under no obligation to give him a hearing. Because Schwake’s punishment still wouldn’t have been expulsion, no hearing would have occurred.

This is a close case, and reasonable people could disagree on which side should prevail. (The amended complaint was not a model of clarity.) But Smith’s performance was an embarrassment. He spent several minutes pontificating about imagined facts that weren’t actually before him, and every exchange between the judge and lawyers on each side was a waste of time since he presumed two key facts (a settlement, and that Schwake’s reputational harm only coming from his lawsuit) that the record contradicted.

All that said, since Smith is a near-certain vote for ASU, the university will prevail if it receives the votes of either Wardlaw or Bumatay. Wardlaw, a very liberal Clinton nominee, would seem an unlikely vote for Schwake, but at least she asked fair questions of both sides, and seemed somewhat receptive on the Title IX count. (Relatively little discussion occurred on due process at the hearing.)

In this exchange, for instance, Wardlaw pressed ASU’s lawyer, Michael Goodwin, on Seager’s conduct, and what that said about the integrity of the university’s system. “There seems to be something wrong with the process,” she noted, where ”there’s some rogue professor talking about the details of [the investigation] to students in his class.”

Wardlaw also went through the complaint in some detail and highlighted what could be the strongest evidentiary points for the accused student. She likely won’t vote with him, but at least she was fair in the oral argument.

The strongest point for Schwake came in an exchange between Goodwin and Judge Bumatay, who spoke much less frequently than his two colleagues. Bumatay asked why the case wouldn’t survive a motion to dismiss if all accused males were found guilty. Goodwin responded that even if ASU did find all accused males guilty, it wouldn’t be a sign of gender discrimination. Judge Bumatay seemed skeptical.

If Schwake prevails, this fairly detailed colloquy between Judges Warclaw and Bumatay, and Goodwin would seem to explain why. Both judges seemed open to the idea that, at least at the pleading stage, the case should move forward on Title IX—though Goodwin would counter that Schwake’s gender discrimination facts were weaker than those of the Oregon students who lost in the only other Ninth Circuit accused student appeal.

The likeliest outcome? A 3-0 win for ASU. (Bumatay didn’t give an impression of an eagerness to be a lone dissenter in this case.) But there’s an outside chance of a limited 2-1 victory on Title IX for Schwake. And, either way, Judge Smith’s performance in the oral argument was deeply unfortunate.