Oral argument in a somewhat below-the-radar appeal suggests a possible, even probable, victory for the accused student in Doe v. University of the Sciences. A Third Circuit panel of Luis Restrepo (Obama nominee), David Porter (Trump nominee), and Paul Matey (Trump nominee) seemed quite skeptical of the university’s position on the Title IX claim, and at least somewhat skeptical of the university’s breach of contract arguments. The latter makes this case of potential import—the Third Circuit will join the First Circuit as the only Appeals Courts to consider what the concept of fairness requires in a Title IX adjudication.

Another Third Circuit appeal, involving a Title IX erroneous outcome claim against St. Joe’s, was submitted on the briefs in late January. (There were no common panel members between the two appeals.) It’s not clear, obviously, which opinion will appear first—a rather important point here since the Third Circuit hasn’t issued a ruling in this area to date. The previous cases it’s handled involved tangential issues (Bucknell, William Paterson) or were settled after oral argument (Clarion).

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

He sued, and his case was assigned to Judge Juan Sánchez a W. Bush nominee. Sánchez denied a TRO and eventually dismissed the complaint in an opinion that firmly sided with the university. He rejected each of the student’s Title IX theories (gender bias in the investigation; selective enforcement because the university knew that Doe, too, was intoxicated on the night of the second incident, but didn’t investigate the accuser for possible sexual assault). Sánchez also dismissed Doe’s breach of contract claim, alleging that the university had disciplined him without providing a fair process. The court argued that “under Pennsylvania law, ‘fundamental fairness’ [which the University’s handbook promised] in the context of student disciplinary proceedings requires a student be given ‘notice of the charges and some opportunity for a hearing.’” Sánchez’s opinion never really engaged with the question of how a process without a hearing provided Doe with “some opportunity for a hearing.”

Doe appealed, focusing his appeal on two elements: selective enforcement in violation of Title IX, and breach of contract for not providing fundamental fairness in his process. Joshua Engel argued the case for Doe (his opening brief is here); Leslie Greenspan argued for the university (her brief is here). The case also attracted an amicus brief of 17 law professors, helmed by accusers’ rights activist Nancy Chi Cantalupo and Georgetown Law’s David Super, focusing entirely on the breach of contract claim. The brief, which defended the single-investigator model, is here.

A few general points on the oral argument. It occurred in the era of social distancing, and so came entirely by phone, making it occasionally disjointed. (Engel tweeted about the experience.) As a listener, a videoconference would have been much easier to follow. Second, virtually all of the questions that Engel received from Judges Restrepo and Porter (Judge Matey didn’t appear to have asked him any questions) were informational. Third, Greenspan was repeatedly challenged by all three members of the panel, with Matey asking particularly incisive questions. Finally, the amicus brief wasn’t mentioned in oral argument, around two-third of which dealt with the Title IX claim.

This exchange, in which Engel articulated his argument that a process without a hearing couldn’t meet Pennsylvania’s requirement of fairness, typified the first half of the oral argument, with Doe’s lawyer receiving almost no pushback from the panel.

Greenspan seemed to make some headway with her argument that the amended complaint misrepresented the single investigator’s report (though not in a way relevant to the selective enforcement claim). Otherwise, the panel seemed deeply skeptical about her arguments.

Judges Restrepo and Porter started things off, noting that the university had evidence that Doe and Roe were similarly intoxicated, but only investigated Doe.

This point was raised several times in the oral argument, and Greenspan kept coming back to a claim that Doe never filed a complaint, and told the single investigator that he considered the sexual encounter to be consensual. Both Matey and Porter, however, challenged her on this point. They noted that even though Doe clearly considered the encounter consensual, under the university’s (extremely broad) definition of alcohol and incapacitation, it was possible that Doe was sexually assaulted, too.

Finally, Restrepo and Porter pointed out the plain language of the university’s own policies required it to investigate if it had evidence of a possible sexual assault, even if the alleged victim didn’t file a complaint.

It’s possible, of course, that all three judges (or at least Restrepo and Porter) were playing devil’s advocate. But there was little in this oral argument to suggest a likely victory for the university on Title IX.

The path the panel would take to such an outcome, however, is less clear. As Greenspan kept pressing her claim that Roe didn’t provide a comparator to Doe under the selective enforcement theory (which dates to the Second Circuit’s Yusuf decision), Judge Matey wondered why the Third Circuit was obligated to follow Yusuf. Perhaps, he noted, the panel could be influenced by the Seventh Circuit’s Purdue opinion.

No other circuit has yet adopted the Seventh Circuit’s plaintiff-friendly standard; if the Third Circuit did so, it would be a significant development.

The panel was a bit harder to read on breach of contract/fairness—though here, again, Engel received no tough questions and Greenspan did. Fairness has been common in New England Title IX cases; the concept was also raised implicitly in important student wins against Cornell Medical School and George Washington. And a recent district court ruling in Florida denied summary judgment to Rollins College on breach of contract/fairness (in a case argued by Engel). On the other hand, the Middle District of Tennessee, in two victories for Vanderbilt, has adopted a theory that fairness simply requires a university following its own procedures (however unfair they may be), and Judge Sánchez’s district court ruling adopted a similar definition.

Greenspan attempted to push the Vanderbilt definition, but Judge Restrepo questioned the “circular” logic of a position that a university’s actions must be deemed fair because a university says it handles its cases fairly.

Then, in perhaps the argument’s most interesting section, Porter and Matey questioned whether the single-investigator model could be reconciled with a fair system. Greenspan defended the university’s policies on grounds of “efficiency,” a standard of which Matey seemed dubious. (She would later try to walk back the justification.)

There wasn’t enough back-and-forth in the breach of contract section to get a firm sense of the panel’s likely sentiments. But, as with the Title IX section of the oral argument, there was little here that suggested sympathy for the university’s position.

Given both the quality and the nature of his questioning, an opinion from Judge Matey could be particularly interesting. But both Porter and Restrepo seemed sympathetic to Doe, as well.

Restrepo ended the oral argument by promising an opinion soon.