Wednesday featured oral argument before the Third Circuit in an appeal brought by an accused student at Princeton. A week before the proceedings, and after the panel (Hardiman, Porter, Matey) was named, Princeton filed a motion (not opposed by the accused student’s lawyer) to seal the oral argument audio. The court took no action—but the audio’s posting to the Third Circuit’s website essentially mooted the motion. The court’s preference for transparency is appreciated, and there was nothing in the 61-minute oral argument (both accused and accuser were pseudonymous) that would have justified sealing.

The background: two Princeton students (identified in the record as John Doe and Jane Roe) had a consensual (at least initially) BDSM relationship involving very rough sex. The relationship appears to have been deeply unhealthy—at one point, Doe’s mother (who also knew his accuser) expressed concerns about violence against her son.

The relationship ended when Roe told Doe she had cheated on him—but shortly thereafter, Roe learned that Doe had also cheated on her. Distressed by Roe spreading what he claimed to be false rumors on campus that he had assaulted her, Doe met with a Princeton RA saying he felt unsafe and believed Roe was harassing him. The RA urged him to get counseling but did not refer the matter to the Title IX office. Roe, meanwhile, filed a Title IX report, claiming that in multiple encounters, Doe had attacked her without her consent. She included photos of her bruises and after-incident texts from Doe implying guilt. Doe then filed a counter-claim alleging abuse by Roe.

Princeton commenced an investigation and imposed a no-contact order, which both students allegedly violated. The university (which has been sued multiple times for unfairness in Title IX proceedings) used a modified form of the single-investigator model—a three-person “panel” that collected statements and evidence from witnesses and then produced a report. Under Princeton procedures, Doe couldn’t cross-examine witnesses, and no hearing occurred. The panel generated a 25-page report that found Doe guilty; Princeton denied his appeal.

Doe sued, arguing gender bias and an unfair procedure in violation of New Jersey state law. He claimed that the Princeton process was biased against him, that it had failed to consider exculpatory evidence (including tweets from Roe), and didn’t adhere to standards of fairness because it denied him a hearing with the right to cross-examination. In an opinion from Judge Brian Martinotti, an Obama nominee who has generally been unfavorably inclined toward accused students, the court granted Princeton’s motion to dismiss—in a rather cramped reading of the Third Circuit’s recent USciences opinion. Doe changed lawyers and appealed. Both parties requested that the Third Circuit seal their briefs in the case, a request the court (provisionally) granted despite the availability of the briefs before the district court.

In the USciences oral argument, Judge Matey dominated proceedings, with Judge Porter also asking repeated, tough questions of the school. Wednesday’s oral argument, by contrast, was dominated by Judge Hardiman, whose first question of Michael Bowen, Doe’s lawyer, came only 30 seconds into Bowen’s presentation.

It soon was clear that Hardiman (1) thought that Doe almost certainly was guilty, based on what he termed Doe’s “admissions against interest” detailed in the Princeton investigative report; and (2) felt that Doe’s original (sealed) complaint didn’t match up to some of the briefing before the Third Circuit.

Hardiman also expressed his concern—as in the exchange below—that Doe was basically arguing that anytime a Title IX investigator made credibility judgments in favor of the accuser, a university would open itself up to a Title IX violation.

Hardiman came back to this point in Bowen’s (extended) rebuttal, in what was clearly the best exchange of the hearing for Princeton.

The exchange with Hardiman wasn’t the only portion of the rebuttal that went poorly for Doe. Judge Porter pressed Bowen on how Doe’s complaint handled two tweets by the accuser that seemed to suggest she had made things up—was he claiming that Princeton officials had considered the tweets but improperly downplayed them, or was he claiming that Princeton officials had ignored them? “I don’t know what your allegation is,” Porter observed. And Judge Matey seemed skeptical of Doe’s state law claims, eventually getting Bowen to concede that no New Jersey state decision had required colleges to hold hearings in disciplinary matters.

Judge Hardiman, meanwhile, seemed wholly unsympathetic to the state law claims. He repeatedly pressed Bowen on whether Doe wanted the court to impose trial-like procedures on colleges and universities, and seemed unpersuaded by Bowen’s response that the court needed to ensure more robust procedural protections only in “these kinds of cases.”  

The panel did not ask about the degree to which federal pressure or pressure from Princeton students, activists, or professors might have created an atmosphere of gender bias on campus.

Judge Hardiman asked tough questions of Doe, and seemed extremely unsympathetic to Doe’s claims of innocence. Unlike in the USciences oral argument, Judges Porter and Matey also had some concerns for the accused student—Porter with the quality of the pleadings, Matey with the state-law argument.

It is, in short, not at all difficult to envision a 3-0 win for Princeton, with a Title IX section holding that the university made appropriate credibility determinations in a case where the accused student was likely guilty; and a breach of contract section holding that New Jersey law (unlike Pennsylvania) doesn’t require colleges to hold hearings, no matter how serious the charges.

That said, in his 30 minutes at the podium, Princeton’s lawyer, Stephen Kastenberg, didn’t fare any better than Bowen. His core arguments were that (a) Princeton handled the case with more than enough procedural protections; and (b) a victory for Doe would mean that “every person will be able to plead a Title IX” count. His implicit argument, detected by Judge Hardiman, was that Doe was clearly guilty and the court shouldn’t call that finding into question.

Princeton encountered trouble with the panel in three primary areas.

First: All three members of the panel essentially wondered whether the facts of this case satisfied what would have been a selective enforcement claim if the Third Circuit still used the Yusuf standard, since it seemed as if Princeton took the female’s allegation of violence against her a lot more seriously than it took the male’s allegation of violence against him, even though there was evidence in the record that each of these students might have committed violence against the other.

Here was Hardiman on that point:

And here was Matey:

And here was Porter:

Second: Two members of the panel—Matey and, especially, Hardiman—worried that the Princeton arguments relied inappropriately on summary judgment standards. Matey, for instance, pushed back when Kastenberg tried to explain away the selective enforcement issue by claiming that the record showed how Roe’s allegations were more serious than Doe’s:

Third: In what was the most interesting section of not only this oral argument but perhaps any of the other 35 oral arguments in this area before Appeals Courts, for around eight minutes Hardiman (joined at one point by Matey) pondered the appropriate standard at the most abstract level for handling Title IX motions to dismiss. This period began by Hardiman conceding the Princeton argument about a win for Doe opening the floodgates to other accused students, only to then observe, “I wonder if that’s…the necessary implication of the law.”

Hardiman’s point that a court might also need to consider the biases of witnesses seemed to take by surprise Princeton’s lawyer, Kastenberg, who countered that possible witness bias had nothing to do with university bias. When Hardiman noted that such bias might be relevant, Kastenberg retorted, “Why?”

Inviting judges to make an argument on Doe’s behalf was an . . . unusual . . . argument tactic. Both Matey and Hardiman chose to answer the question.

Here was Matey’s reply:

And here was Hardiman’s (who by this point had concluded that he, rather than Princeton’s lawyer, had asked the question):

It goes without saying that any opinion that even partially includes language about the structural shortcomings of Title IX “regimes” would be pathbreaking. Hardiman seemed to acknowledge as much later in the exchange, especially since he seemed wary of blessing a legal standard that would allow students like Doe to have viable lawsuits. “I can’t unring the bell of what’s in that report,” he told Princeton’s lawyer.

There was, finally, one Princeton admission that hung unexplored, both by the other members of the panel and then by Bowen during rebuttal. Judge Porter, as he had in the USciences case, asked a great question: what, exactly, did the state law requirement that the accused student get access to the evidence against him mean?

So Princeton was conceding that it had set up a system in which accused students not only couldn’t cross-examine adverse witnesses or observe them testifying before the panel—but they couldn’t even read the statements of the witnesses. This admission seemed to reinforce the concerns with premature dismissal expressed by Judges Hardiman and Matey—if, in fact, Princeton officials were biased on basis of gender, selectively summarizing witness statements in the investigative report would be exactly the type of behavior that could be expected, and evidence for this could only be obtained through discovery.

An opinion stressing the importance of discovery—that the district court inappropriately made fact determinations that should have been reserved for the summary judgment stage—perhaps coupled with some commentary on selective enforcement as an indication of gender bias in this particular case seems to be the likeliest chance of victory for Doe.

Unsympathetic plaintiffs very, very rarely get favorable decisions in Title IX lawsuits. And the Princeton plaintiff is unsympathetic. Moreover, while the panel seemed to be leaning toward Doe for most of the oral argument, the rebuttal went very poorly for him. On the other hand, each judge had serious reservations with at least some of Princeton’s arguments.

A Princeton win probably would be narrow—it seems rather unlikely that two members of the USciences panel would sign onto an opinion that effectively nullifies it. By contrast, given some of the points raised by the panel, a Doe win almost certainly would yield a decision of considerable importance.