Wednesday afternoon, a three-judge panel consistent of Judges Consuelo Callahan (W. Bush nominee), Danielle Forrest (Trump nominee after the original nominee for the seat failed to clear the Senate), and Carol Amon (an H.W. Bush-nominated district court judge sitting by designation) heard an oral argument involving a Title IX lawsuit filed by a former student at UCLA.
Judge Callahan seemed a likely vote for Doe, and Judge Amon seemed sympathetic to UCLA. Judge Forrest was harder to read but seemed on balance to lean toward Doe. Based on her comments in oral argument, an opinion written by Judge Callahan could be very significant in this area.
The facts of this case were bad even for the era’s Title IX matters. At UCLA, an international Ph.D. student had a bad breakup with his girlfriend, who was at one point a UCLA student. She went to his office and confronted him; a fight ensued. She claimed a physical assault and he was arrested by UCLA police. The university immediately suspended him. Yet the physical evidence of any assault was non-existent, and ultimately even the UCLA panel found him not guilty of 12 of the 13 charges against him. But it did find the Ph.D. student guilty of a 13th charge—causing the accuser to be fearful. As a result, he was suspended for two years, had to leave the Ph.D. program, and lost his student visa. The student obtained a writ of mandate from a state court in California that ended the suspension after just over a year, and UCLA didn’t re-charge him, but his academic career at UCLA was over.
The student filed a Title IX suit that the district court (in a rather desultory opinion written before the 9th Circuit’s pathbreaking Schwake opinion) dismissed. Before the 9th Circuit, Mark Hathaway argued for the accused student, identified only as John Doe, and Hailyn Chen presented the argument on behalf of UCLA.
For UCLA, the most damaging aspect of the argument revolved around an assertion—in, of all places, the office dealing with accused students(!)—by a university official that he had never heard of a woman making a false claim about an ex-boyfriend in the Title IX process. That seemed explicitly gender-based, Judge Forrest noted. Chen said the remark was irrelevant, for any number of reasons (the Title IX office and the accused students’ office is separate, the official who made the remark wasn’t on the disciplinary panel). Judge Callahan seemed skeptical of this remark, noting that the official got this view from the university’s own training.
Earlier in the oral argument, Judge Callahan had also expressed concerns about this remark. Calling on her own experience, she noted that she knew men who had been killed by women. And, speaking directly to UC lawyer Chen, Callahan commented that recalled days gone by when women never would be believed, but there seemed to have been a significant counter-reaction, perhaps too far in the other direction. Why couldn’t Doe argue, she wondered, that point?
Judge Callahan concluded, “Either way, men and women should be able to be evaluated on their own, and not based on some ‘gender’ assumptions.”
As a general matter, at least in oral argument, Judge Callahan showed a greater appreciation of the legal and campus environments in which Title IX adjudications operate than perhaps any judge except the Sixth Circuit’s Raymond Kethledge. She repeatedly implied that UCLA seemed to have been confronted by a claim that was non-tenable, rushed to judgment, and then perhaps searched for a way to find the accused student guilty of anything (in this case, causing fear). Chen seemed unmoved, noting that the student ultimately was able to be heard by UCLA officials. Judge Callahan was, to put it mildly, unpersuaded.
Judge Callahan also pressed the university on the purpose of a Title IX proceeding. She noted that some women do lie, and not all men are abusers. Perhaps, she continued, Doe was a jerk in how he treated his ex-girlfriend. But a Title IX adjudication isn’t supposed to determine whether a student is a jerk.
Both Judges Forrest and Amon (in a rare comment from her skeptical of UCLA’s actions) wondered about the allegation that UCLA never had found a woman guilty under these circumstances. Judge Amon inferred that this outcome might be traceable to the university’s believe-all-women approach, as reflected in the remark by the university official.
If UCLA wins, comments by Judges Forrest and Aron would show the way—both noted that while the UCLA process both seemed biased, but only in favor of accusers. The UCLA counsel jumped in and pointed for reference to the Tenth Circuit Denver I and unpublished Sixth Circuit Cummins opinion. But both of those opinions, of course, have been eroded by subsequent decisions from the relevant court. And numerous courts (the Eighth Circuit in UArkansas and Regents, the Seventh Circuit in Purdue, the Sixth Circuit in Oberlin, the Second Circuit in Menaker and Columbia, the Tenth Circuit in Denver II, and even the Ninth Circuit itself in Schwake) have held that procedural irregularities are relevant to determining gender bias. But apart from Schwake, none of those other cases were mentioned by the judges.
Perhaps the most interesting section of the oral argument—albeit not one directly related to the case—came during discussion of current Title IX regulations. UC’s lawyer conceded that the processes used in the Doe investigation would violate the current regulations—but she noted the regulations weren’t retroactive, and therefore this point was irrelevant to Doe’s case.
Judge Callahan jumped in and gave a brief history of the Obama-era Title IX debate. “There were,” she noted, “a lot of challenges to Title IX processes, and there were a lot of challenges they were sort of kangaroo courts. And they just, without any process, took serious action against students. And they’ve been changed . . . That’s what was going on back then.”
Ironically, at almost the same time Judge Callahan was raising this issue, the Senate was voting to confirm Catherine Lhamon—architect of these now-discredited policies—to return for a second stint as OCR head.