In 2016, Gary Pavela, a longtime educational consultant and fellow for the National Association of College and University Attorneys (NACUA), referenced the wave of Title IX accused student lawsuits to observe, “In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases. Something is going seriously wrong. These precedents are unprecedented.”

Ironically, at the time of Pavela’s comment, no Appeals Court had issued a favorable ruling for an accused student. Since then, there’s been at least one favorable ruling in every appellate court except the Fourth and Eleventh Circuits (and the Court of Appeals for the D.C. Circuit, which hasn’t heard any cases in this area).

Two patterns have combined to produce these results. The first is a surprising unwillingness of federal judges to show deference to universities in this area. At a general level, among Appeals Court judges (the situation is much different among district court judges) Trump nominees have been better than W. Bush nominees who have been better than Clinton nominees who have been better than Obama nominees. There are, of course, exceptions: Judge William Pryor, a conservative W. Bush nominee, authored the most pro-university decision of any court, Doe v. Samford University; and Judge Kim Wardlaw, a very liberal Clinton nominee, eviscerated Arizona State’s lawyer during oral argument for the pathbreaking decision, Schwake v. Arizona Board of Regents. But, on the whole, at the appellate level, accused students have fared better with a red-state Trump or W. Bush nominee than a blue-state Obama nominee.

The second was a pattern of Appeals Courts going big when encountering particularly strong cases but being very restrained when handling extremely weak appeals. Many of the strongest Appeals Court decisions—Doe v. Stonehill College, Doe v. Columbia University, Doe v. Oberlin University, Doe v. Purdue University, Doe v. University of Arkansas, Schwake—came after appeals of strongly pro-university opinions from (often very liberal) district court judges despite what seemed like compelling complaints from accused students. Meanwhile, on the other side, Appeals Courts tended to issue brief summary affirmances or highly fact-specific opinions (see this classic from Judge Chad Readler in a sure-loser Case Western Reserve accused student appeal) that are worthless as precedents for universities.

Both of those patterns, however, appear to be breaking down. The Senate has already confirmed 36 Appeals Court judges nominated by Biden—who as a whole have been younger and more liberal than Obama nominees. (There’s also reason to suspect that a preferred viewpoint on Title IX matters has been a vetting issue for Biden in a way that it wasn’t for Obama—in part because Biden cares more about this issue and in part because Obama basically had no more appellate appointments after 2014, when lawsuits from accused students surged.) Biden nominees have heavy influence in the First and Second Circuits and significant influence in the Third, Sixth, and Ninth Circuits—all courts with good precedent that could be eroded by new decisions from Biden-dominated panels. On the Second Circuit, where the shift has been the most pronounced, six of the thirteen judges—all liberal women (and at the appellate level, accused students have done better with men than with women)—were nominated by Biden.

That doesn’t mean, of course, that students with strong cases who draw bad district court judges should forego appeals—the only way one of these cases is likely to make it to the Supreme Court is if an Appeals Court sides with a university in a very strong case. (The pending Loyola case in the Seventh Circuit?) But it does mean that futile appeals carry a risk of eroding good law that might not have been present in the more favorable appellate environment of 2020 or early 2021.

These kamikaze appeals are especially dangerous because the second pattern—Appeals Courts minimizing decisions in weak appeals—also has begun to shift. Two recent Fourth Circuit opinions illustrate the problem. In the no-chance Virginia State appeal, the court adopted a new pleading standard for Title IX cases, adding a “but-for” requirement that district courts have interpreted very differently but that basically heightens the bar for accused students. (No other circuit uses this standard.) And earlier this year, in the similarly no-chance Doe v. The Citadel appeal, the Fourth Circuit expressly rejected the right to cross-examination in accused student cases (after the accused student, incredibly, demanded this right in his briefing even though Citadel procedures had given him a right to cross-examination) and for good measure threw in a passage implying that students accused of sexual assault deserve no more due process rights than students accused of a noise violation. The Citadel opinion already has been cited to help torpedo stronger accused student lawsuits in Doe v. Wake Forest University and in the recent Fourth Circuit Virginia Tech opinion.

Perhaps the only good thing that could be said of the Virginia State or Citadel appeals is that they came in a circuit that didn’t already have good law. That doesn’t apply to the two most recent kamikaze appeals: Averett v. Hardy and Doe v. New York University.

Averett involves a lawsuit filed by a former University of Louisville football player broadly alleging both due process and Title IX violations (areas where the Sixth Circuit law is currently the best in the country). Briefing in the case was less than persuasive, and the student’s Title IX claim was dismissed before the court granted summary judgment to Louisville on the remaining due process count. For an example of the quality of the lawyering in this case, consider this recent observation from the magistrate judge: “careless behavior has unfortunately been a pattern for Plaintiff’s Counsel during this litigation.” Even though one aspect of the case remains alive (a defamation claim) and despite two contrary orders from the district court, the student’s lawyer is already trying to appeal to the Sixth Circuit.

There might be a case here, but the quality of the briefs and the depositions has been so poor that it’s hard to know. For improper disclosures about the accuser in one filing, to take a recent example, the student’s lawyers blamed an internet outage (even though he waited until filing day to prepare exhibits), the effects of car accident on unspecified day, an “optic event,” and the accuser’s lawyer not redacting private information (even though the accuser’s lawyer wasn’t obligated to do so). It’s inconceivable that such a haphazard approach will prevail in the Sixth Circuit—the only question is whether it gets a bad panel (the circuit is currently around evenly divided) that chooses to use it to rein in rights students currently have.

The NYU appeal—which was not filed by the student’s original lawyer—is futile for somewhat different reasons. Here, the quality of the lawyering before the district court was very high—Kimberly Lau represented the accused student, who despite some tough facts survived a motion to dismiss in a pretty good opinion (which, of course, was legally appropriate given the strong precedent that exists in the Second Circuit). But the case then crumbled at summary judgment, largely because the accused student struggled to meaningfully challenge NYU’s guilty finding. From the opinion of Judge Mary Kay Vyskocil, a moderate Trump-nominated judge to whom the case was reassigned (citations to both parties’ statement of facts omitted):

Plaintiff and Jane met when they were both in high school, and they stayed in close contact during freshmen year at their respective colleges. After their freshmen year, Plaintiff transferred schools to join Jane at NYU and specifically requested (without Jane’s knowledge) to be housed in her dormitory. When Jane decided that she needed some space, and told Plaintiff as much, Plaintiff threatened to harm himself and sent Jane over 100 unanswered messages. Plaintiff continued this tactic over time, refusing to leave Jane alone while making threats of self-harm and threatening to give compromising information to Jane’s parents and friends as well. At some point during their relationship, Plaintiff took photos of Jane without her consent while her shirt was off or partially off, which Plaintiff supposedly used for his own sexual pleasure. Things got so tense that in a heated argument in a stairwell, Jane punched Plaintiff when he leaned in towards her, which she claimed to have done in self-defense. The list of inappropriate and unusual behavior by no means stopped there. However, for the sake of brevity, there is one final act (or series of acts) worth noting. The day that Jane initially reported Plaintiff’s misconduct, NYU issued a no-contact directive to both Plaintiff and Jane. Plaintiff violated that directive within minutes of it being implemented, and violated it repeatedly throughout the course of the investigation into his conduct.

Vyskocil’s opinion seemed to overplay these highly unappealing facts and understate the student’s strongest arguments (that NYU had a pattern of punishing female respondents less harshly, that the procedural problems in his hearing, which was remote, made the university’s final judgment unreliable). But the counter-argument is quite strong: any procedural irregularities didn’t make a difference in the final outcome and the plaintiff was hard for a judge to sympathize with.

No accused student has survived summary judgment on Title IX—whether it’s Rowles or Olson or Dismukes or Anderson or Univ. of Iowa or Clark Univ.—where the court saw no indication, upon reviewing the facts, that the university got it wrong. Courts have consistently declined to order a trial on a gender discrimination claim when the university’s ultimate finding of responsibility seemed justified, even if there were some signs of gender bias present in the case.

The Eighth Circuit Rowles decision is a good example: there, the student’s lawyer uncovered evidence that a University of Missouri Title IX official believed “asking someone out on a date who is physically smaller than oneself qualifies as a ‘power or authority’,” and thus violated Mizzou’s Title IX policy—far, far stronger evidence of gender bias than anything in the NYU case, since it would suggest that the majority of the university’s male students had committed sexual harassment. But there also was little doubt that despite this bizarre standard, the student actually was guilty of stalking. He lost.

The idea that a panel dominated by Biden appellate nominees—chosen by a President who for the last dozen years has gone out of his way to oppose fair treatment for students accused of Title IX offenses—will somehow be more sympathetic to a student with facts like the NYU case than a moderate Trump judge is nothing short of fantastic. There are, instead, multiple ways in which the Second Circuit could use this case for mischief—most easily by imposing the Fourth Circuit’s “but-for” standard, which the district court’s opinion acknowledged was in play and which a previous Second Circuit opinion teased last year. The best-case scenario here—as in Averett—would be the accused student drawing a favorable panel that narrowly affirms the district court.

For accused students like those in the NYU or Louisville cases, perhaps there’s a “misery-loves-company” approach: since they had to lose, they’ve chosen to act in a way that will let them take down future accused students with them. And for the lawyers in these cases (neither of whom regularly handles Title IX lawsuits), the fees from a winning or losing appeal will be the same without harming any future clients. Perhaps a group like FIRE or FACE should file an amicus brief urging affirming the district court’s opinion as the correct application of the current circuit standards. But either way, expect some bad law to be coming from the Second and Sixth Circuits by early 2025.