Likely University Wins in Sept. Appeals

[Update, 11-20: As predicted, CA7 ruled for Marian, in a 3-0, non-precedential opinion.]

[Update, 12-18: As predicted, CA8 ruled for Missouri, in a narrow, 3-0 opinion.]

Three accused student lawsuits went before Appeals Courts in September—Marian University (Seventh Circuit), University of Missouri (Eighth Circuit), and University of Denver (Tenth Circuit). The cases varied in strength. Both the Marian and DU cases featured single investigator models with minimal procedural protections for the accused, yielding guilty findings that seemed at least open to question. The Missouri case involved a stalking rather than a sexual assault allegation—albeit one where the accused student seemed almost certainly guilty. It did, however, offer an intriguing racial discrimination claim regarding the punishment of the accused student, Jeremy Rowles, who is Black.

Marian (CA7, Sept. 16): The panel included Judges Easterbrook (Reagan nominee), Manion (Reagan), and Scudder (Trump). Marian, a private institution in Wisconsin, used training materials that seemed designed more to encourage a finding of guilt than a fair adjudication. The school used a modified version of the single investigator model (there were two investigators in the case); one of the investigators, Dean Paul Krikau, tweeted out his disbelief of Brett Kavanaugh’s denials of sexual assault shortly before he undertook the investigation here. (Like the Kavanaugh case, the allegations against the accused student came well after the fact involving an accuser who didn’t remember key surrounding details.) Krikau, moreover, appears to have prejudged the case, telling the accuser—before speaking to the accused—that “we have established very clearly that we have a [sic] sexual Misconduct” and “I would say very clear case of harassment and intimidation and stalking.”

The district court granted summary judgment to Marian, on grounds that no gender bias existed; the only question asked by Judge Easterbook—comparing Krikau’s Twitter commentary to remarks that might be made by a tough-on-crime judge at sentencing—indicated agreement with the district court.

This was, to put it mildly, a very odd comparison. Even in a bench trial, a judge doesn’t also serve as the investigator in the case, as Krikau did in the Marian case. Moreover, the hypothetical offered by Easterbrook might have differed if it involved not courtroom comments by the judge at sentencing (wholly appropriate) but instead public comments by the judge on a case with related facts about which the judge knew nothing beyond what she read in the newspaper. In that case, it would seem as if the accused party’s lawyer probably would move for a recusal.

That Easterbrook returned to the comparison twice more suggested his mind was made up. Comments from the other two judges indicated no more sympathy for the student—Manion asked factual questions about the case that would have no bearing on the decision; Scudder speculated about the need for a comparator female student, the sort of thing that the standard outlined by Judge Barrett in Purdue suggests isn’t needed.

This seems like a near-certain 3-0 win for the university.

Missouri (CA8, Sept. 22). The panel included Judges Loken (H.W. Bush nominee), Shepherd (W. Bush), and Erickson (Trump). The district court in this case ruled—at summary judgment—for Missouri, despite highly concerning statements from Mizzou Title IX officials, which suggested that at least one viewed the university’s prohibition on sexual relations between people with disparities of power applying more generally to men. Rowles also highlighted how two white students found guilty of the same offense received much lesser punishments; the district court granted summary judgment to Mizzou on that question even though the court also had denied student access to the disciplinary files in those two cases so he could make his comparison. All that said, the core problem in the case remained that Rowles appeared to be guilty, and his claim that the university’s sexual harassment code was too vague under the First Amendment was unconvincing.

Shepherd and Erickson were both on the panel in the University of Arkansas case; in oral argument there, both were deeply skeptical of the university position and made clear they were likely votes for the accused student. In this oral argument, however, Shepherd didn’t speak and Erickson’s questions were skeptical of Rowles’ claims. Loken mostly seemed cranky (to both sides), though he did ask one or two questions challenging Missouri’s position, at least on the racial discrimination claim. Erickson, however, seemed dubious even on those grounds.

Rowles’ lawyer, in rebuttal, suggested that the judge’s order came after the close of discovery, so it would have been futile to have made such a request. Like Marian, this too seems like a 3-0 win for the university.

Denver (CA10, Sept. 22). The panel included Judges Tymkovich (W. Bush nominee), Phillips (Obama), and Baldock (Reagan). The March decision in Denver Ihovered over this case: in a deeply troubling opinion, the Tenth Circuit there held that a university “railroading” an accused student didn’t violate Title IX. The opinion also took a silo-like approach, considering and then rejecting a variety of factors (statistical evidence, procedural irregularities, outside pressure) that multiple other Appeals Courts had considered relevant factors in determining possible gender discrimination—without ever taking a step back and examining the evidence as a whole.

For Judge Phillips, Denver I was the be-all and end-all of the case; in fact, he went further than Denver I to suggest that a university wrongly imposing guilt to avoid controversy and to ensure that the Title IX officials didn’t get fired—precisely the sort of thing recognized as key in the Second Circuit’s Columbia decision—doesn’t raise any inference of gender bias.

Adrienne Levy argued (very effectively) for Doe, stressing one key piece of evidence lacking in Denver I—the fact that Denver seemed to have handled the few cases against female accused students more favorably. Judge Tymkovich, however, worried whether this issue had been preserved for appeal.

That said, both Tymkovich and Judge Baldock seemed extremely concerned with the core unfairness of Denver’s system. Baldock, for instance, wondered about the implications of DU not exploring exculpatory witnesses.

And in perhaps the most interesting section of the oral argument, Tymkovich—channeling Judge Kethledge’s opinion in Oberlin—wondered whether it was possible to have a university adjudication that was “so one-sided” to be gender biased.

Given that Tymkovich also suggested that this standard might be more appropriate for the motion to dismiss, the likeliest outcome here remains a 3-0 win for Denver, given the tough precedent of Denver I. But while Phillips seems like a sure vote for the university, their questions indicated that Baldock and (less likely) Tymkovich might have a chance to view the appeal more favorably.