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.