The First Circuit has had four accused student appeals in 2021. The Harvard case, argued in early February, was a tough panel to read and still hasn’t yielded an opinion. The Dartmouth case, with a student whose guilt seemed clear, was submitted on the briefs and surely will yield a university victory. The panel in the Brown case seemed highly likely to affirm the district court’s grant of summary judgment to Brown—with the possible (albeit unlikely) exception of the student’s intentional infliction of emotional distress claim.
Today, the fourth case—involving a student from Stonehill College—went before a panel of Judges Howard (W. Bush), Lipez (Clinton), and Gelpi (Biden). The First Circuit is probably the most hostile circuit to accused student lawsuits, and this case featured day-after texts from the accused student that raised doubts about his claims of innocence. But the panel seemed surprisingly open to the accused student’s appeal—perhaps due to the aggressiveness of the district court’s opinion.
The basics: In fall 2017, two Stonehill students had a short-term sexual relationship. Both parties conceded that their first three sexual encounters were consensual; the female claimed the fourth (a digital penetration incident) was non-consensual. The next day, the female student messaged the male claiming she hadn’t consented; he eventually responded, “Please forgive me for being a drunken idiot. I’d never want to hurt you,” and “I’m so really sorry I know I fucked up, I totally misread the situation. What can I do to make it right?” The accuser then filed a Title IX complaint.
Stonehill used a modified single-investigator system (with two investigators rather than one), in which the accused student had no opportunity for a hearing or cross-examination. In this case, the student maintained that his texts were apologies for making the accuser feel uncomfortable, not admissions of guilt; the investigators disagreed. Bolstering the accuser’s credibility in their eyes was an alleged morning-after conversation between the accuser and another student (Witness 2) in which she said about the incident, “It wasn’t ok.” That alleged conversation appeared in the Stonehill Title IX finding—but the investigators never shared it with Doe. His lawyer told the First Circuit even now that he doesn’t know if the statement came from Roe, claiming what she told Witness 2, or from an interview of Witness 2 by the investigators.
At the district court, Judge Leo Sorokin (an Obama nominee) sided with Stonehill in one of the most aggressively pro-university rulings we’ve seen in this area. He unequivocally rejected the student’s linkage of Title IX and a right to cross-examination (“the Court declines to interpret Title IX to require categorically a live hearing with cross-examination in all disciplinary proceedings involving claims of sexual misconduct”). He dismissed the Title IX count by claiming that bias against accused students isn’t gender bias and in any case the accused student was guilty. And he adopted a very limited view of contractual rights despite Stonehill not only promising a fair process but doing so in unusually strong language.
Two items from Sorokin’s motion-to-dismiss opinion gave a sense of his willingness to make inferences in Stonehill’s favor. Doe’s complaint explicitly pled that the day-after texts were perhaps awkward attempts to smooth things over after an uncomfortable incident, not an admission of guilt. Judge Sorokin described this section of the complaint as Doe alleging that he “lied in writing about the events in question after Roe leveled her accusation.” Sorokin, meanwhile, conceded Stonehill’s policy technically required it to share with Doe the Witness 2 conversation, but deemed this failure a “minor, non-prejudicial error” allowed by the policy, and described the evidence as only “cumulative.”
Doe drew—by First Circuit standards—a decent panel, in that he avoided Judges Lynch (Clinton) and Barron (Obama), who seem strongly hostile to accused students. All three panel members seemed more sympathetic to Doe than to Stonehill, with the key issue in the oral argument whether Sorokin’s opinion inappropriately accepted Stonehill’s version of the facts.
For the most part, questions of Doe’s lawyer, Timothy Woodcock (who was impressive throughout the oral argument), were requests for more information or opportunities for him to bolster his case.
Here, for instance, was Judge Lipez on the day-after texts:
And on whether the district court essentially treated the decision as a summary judgment rather than a motion to dismiss.
The only tough question Woodcock received came from Judge Howard, who asked why it wasn’t reasonable for the district court to determine whether or not breaches of the contract actually mattered.
Within his first minute at the podium, Stonehill’s lawyer, Christopher Iaquinto, conceded, “We acknowledge there were mistakes in the conduct of the process.” But he denied that the mistakes prejudiced Doe in any meaningful way.
The panel asked him noticeably tougher questions than Woodcock received. Judge Howard, for instance, pressed Iaquinto on whether the district court improperly made inferences in Stonehill’s favor:
And how the opinion handled Doe’s description of the morning-after texts.
Judge Lipez, meanwhile, focused on how the district court handled the Witness 2 issue.
He seemed skeptical that—at least on a motion to dismiss—the Witness 2 evidence could be described as cumulative.
Judge Gelpi’s only intervention in the oral argument raised a different issue. In what might be a bad sign for the accused student in the Harvard case, on whose panel Gelpi also served, he told Iaquinto that he was familiar with Massachusetts caselaw and First Circuit opinion regarding breach of contract and basic fairness, in a question that implied some sympathy with the college’s limited conception of these rights. But, he noted, Stonehill’s policy (which deemed thoroughness and fairness “paramount” in its adjudication of Title IX allegations) seemed to go beyond how previous cases had defined fairness.
At the end of the day, Doe isn’t a terribly sympathetic plaintiff. (The morning-after texts don’t make him look good.) It’s entirely possible that the panel was simply playing devil’s advocate or thinking out loud about what might be the appropriate limits of a court hearing a motion to dismiss. Iaquinto certainly had answers for all of the judges’ questions, and there were no sharp follow-ups from any member of the panel.
That said, on the whole, each member of the panel seemed more sympathetic to Doe than Stonehill, and—much like the Third Circuit panel in the recent Princeton oral argument—an opinion reminding district courts not to make key factual inferences in favor of universities is entirely possible.
Given the First Circuit’s traditionally glacial pace in handling accused student appeals, a decision probably shouldn’t be expected until fall 2022.