Cautious Optimism for Accused Student in Critical Eighth Circuit Appeal

Today featured the second of what likely will be five oral arguments in accused student appeals during the 2019-2020 session of Eighth Circuit, which covers Arkansas, Missouri, Nebraska, the Dakotas, Iowa, and Minnesota. (Ironically, between 2011 and 2019, the Circuit hadn’t heard any appeals from accused student Title IX cases.) Today’s appeal, involving a decision from the University of Arkansas, seems likely to yield the most important decision of the five. The panel included Judges Steven Colloton (W. Bush), Bobby Shepherd (W. Bush), and Ralph Erickson (Trump).

Even in the world of dubious Title IX guilty findings, the Arkansas case stood out. The accuser claimed she was incapacitated and therefore couldn’t have consented to sex—but the police officer to whom she reported (she also wanted to pursue criminal charges) found her non-credible, and an Uber driver who drove her to the accused student’s apartment couldn’t corroborate her story either. Arkansas’ Title IX investigation ended with a not-guilty finding—which she appealed to a hearing panel. At that point, the accuser modified her theory of the offense to force and/or incapacitation—and Arkansas not only allowed her to do so, but refused the accused student’s request for clarifying information. (The accuser, by this point, had organized campus protests suggesting Arkansas was indifferent to rape, upping pressure on the university to reach a guilty finding.) At a hearing in which the campus investigator didn’t appear, the police officer testified on behalf of the accused student, and no direct cross-examination occurred, the accused student was found guilty by a 2-1 vote. The university’s own finding, however, couldn’t say whether he ever knew the accuser was incapacitated, and the school allowed the student to graduate. It was almost as if UA simply wanted a guilty finding to appease the campus protesters.

The student sued, seeking to remove the Scarlet Letter from his transcript. The case drew Judge P.K. Holmes, an Obama nominee. In the recent article on campus Title IX litigation from Sam Harris and me, we identified Holmes’ decision in this case as one of the two worst federal decisions in this area since 2011. Holmes conceded there might be a due process claim to cross-examination—but suggested it was trumped by the anti-crossexamination provisions of the 2011 Dear Colleague letter. He didn’t explain why OCR guidance was more important than the Constitution, or why guidance rescinded before the events of the case even occurred was relevant to his analysis. Holmes saw little problem with the accuser changing her story in the middle of the process, suggesting that UA simply allowed more information to come to the attention of the hearing panel. And he dismissed the Title IX count with scant analysis, even doubting whether the accused student—in a case where two of the four UA decisionmakers had found him not guilty—had sufficient evidence to cast doubt on the correctness of the finding. He also granted qualified immunity to UA administrators, but this issue didn’t come up in the Eighth Circuit oral argument.

Heather Zachary argued the case (very effectively) for Doe; Joseph Cordi argued for Arkansas. The panel asked many more questions of Arkansas’ case than Doe’s; Shepherd and Erickson (in particular) seemed more sympathetic to Doe, while Colloton was harder to read. Zachary’s opening section of argument proceeded almost without interruption, but for friendly questioning from Judge Shepherd on whether the district court might have improperly drawn inferences in favor of the university in a motion-to-dismiss ruling.

 

Questioning of Cordi, by contrast, was much sharper, and focused on three issues: lack of notice (due to the shifting claims of the allegation); cross-examination; and gender bias under Title IX. In general, Cordi seemed less well-prepared than did Zachary, though, in fairness, he also received tougher questions.

To begin with, and in sharp contrast to Judge Holmes at the district court, all three of the Eighth Circuit judges seemed skeptical of the wisdom of UA’s guilty finding, above and beyond the need to accept the facts in the complaint. This colloquy involving Cordi and Judges Colloton and Erickson set the tone:

 

Shepherd also seemed troubled that UA had, in effect, shifted the burden of proof to Doe—requiring him to prove consent, rather than requiring the university to prove a lack of consent.

 

Cordi was repeatedly pressed on the issue of notice—a point of vulnerability for the university given UA’s allowing the accuser to change her theory of the offense, and given that Doe was found guilty even though UA acknowledged he didn’t know of the accuser’s alleged incapacitation. This exchange came with Judge Colloton.

 

In what was clearly the most encouraging section of the oral argument for Doe, Judge Erickson sharply rebuked Cordi’s fact-free suggestions that it was wholly implausible, to appease campus protesters, that a university (or, he added, any other entity) would seek to find accused males guilty. (One wonders what academic environment Cordi has been witnessing the past eight years.) Erickson cited the #metoo/believe-all-women agenda to show the absurdity of Cordi’s claim. If Erickson were to apply this sentiment in an opinion, he would join Amul Thapar and Amy Barrett as Trump nominees to aggresively side with accused students.

 

This exchange, between Cordi and Judges Erickson and Colloton, got to the heart of the accused student’s Title IX argument given the specifics of his case–a guilty finding coupled with a punishment that seemed very light if UA actually believed in the merits of its finding. Noting the campus pressure to do more on behalf of female complainants, Colloton wondered, “Why wouldn’t it be plausible that they’ll say, ‘Well, we’re going to have to find more men responsible and maybe we’ll go light on the punishment to kind of smooth things over?'”

 

It seems possible, however, that the panel will not reach the cross-examination count, as seen in the closing section of the argument between Judge Colloton and Zachary. Colloton faulted Zachary for not pleading specific questions that were unasked in the UA hearing, which, of course, Zachary couldn’t do because Arkansas withheld the transcript of the hearing from Doe.

 

The overall take: all three members of the panel (and especially Erickson and Shepherd) seemed to believe that Arkansas wrongly found Doe guilty. All seemed at least somewhat dubious that UA had provided Doe with sufficient notice. And Colloton and Erickson (the latter strongly) seemed skeptical of the district court’s Title IX rationale. They didn’t telegraph their ruling, however, and anything from a 3-0 win to a 3-0 loss seems theoretically possible. But a win for Doe seems the likelier outcome, in what has the potential (if so) to be a very important ruling.

Cautious Optimism for Accused Student in Critical Eighth Circuit Appeal

Today featured the second of what likely will be five oral arguments in accused student appeals before the 2019-2020 session of Eighth Circuit, which covers Arkansas, Missouri, Nebraska, the Dakotas, Iowa, and Minnesota. (Ironically, between 2011 and 2019, the Circuit hadn’t heard any appeals from accused student Title IX cases.) The most important of the five, in terms of potential national significance, involved a case from the University of Arkansas heard today by Judges Steven Colloton (W. Bush), Bobby Shepherd (W. Bush), and Ralph Erickson (Trump).

Even in the world of dubious Title IX guilty findings, the Arkansas case stood out. The accuser claimed she was incapacitated and therefore couldn’t have consented to sex—but the police officer to whom she reported (she also wanted to pursue criminal charges) found her non-credible, and an Uber driver who drove her to the accused student’s apartment couldn’t corroborate her story either. Arkansas’ Title IX investigation ended with a not-guilty finding—which she appealed to a hearing panel. At that point, the accuser modified her theory of the offense to force and/or incapacitation—and Arkansas not only allowed her to do so, but refused the accused student’s request for clarifying information. (The accuser, by this point, had organized campus protests suggesting Arkansas was indifferent to rape, upping pressure on the university to reach a guilty finding.) At a hearing in which the campus investigator didn’t appear, the police officer testified on behalf of the accused student, and no direct cross-examination occurred, the accused student was found guilty by a 2-1 vote. The university’s own finding, however, couldn’t say whether he ever knew the accuser was incapacitated, and the school allowed the student to graduate. It was almost as if UA simply wanted a guilty finding to appease the campus protesters.

The student sued, seeking to remove the Scarlet Letter from his transcript. The case drew Judge P.K. Holmes, an Obama nominee. In the recent article on campus Title IX litigation from Sam Harris and me, we identified Holmes’ decision in this case as one of the two worst federal decisions in this area since 2011. Holmes conceded there might be a due process claim to cross-examination—but suggested it was trumped by the anti-crossexamination provisions of the 2011 Dear Colleague letter. He didn’t explain why OCR guidance was more important than the Constitution, or why guidance rescinded before the events of the case even occurred was relevant to his analysis. Holmes saw little problem with the accuser changing her story in the middle of the process, suggesting that UA simply allowed more information to come to the attention of the hearing panel. And he dismissed the Title IX count with scant analysis, even doubting whether the accused student—in a case where two of the four UA decisionmakers had found him not guilty—had sufficient evidence to cast doubt on the correctness of the finding. He also granted qualified immunity to UA administrators, but this issue didn’t come up in the Eighth Circuit oral argument.

Heather Zachary argued the case (very effectively) for Doe; Joseph Cordi argued for Arkansas. The panel asked many more questions of Arkansas’ case than Doe’s; Shepherd and Erickson (in particular) seemed more sympathetic to Doe, while Colloton was harder to read. Zachary’s opening section of argument proceeded almost without interruption, but for friendly questioning from Judge Shepherd on whether the district court might have improperly drawn inferences in favor of the university in a motion-to-dismiss ruling.

 

Questioning of Cordi, by contrast, was much sharper, and focused on three issues: lack of notice (due to the shifting claims of the allegation); cross-examination; and gender bias under Title IX. In general, Cordi seemed less well-prepared than did Zachary, though, in fairness, he also received tougher questions.

To begin with, and in sharp contrast to Judge Holmes at the district court, all three of the Eighth Circuit judges seemed skeptical of the wisdom of UA’s guilty finding, above and beyond the need to accept the facts in the complaint. This colloquy involving Cordi and Judges Colloton and Erickson set the tone:

 

Shepherd also seemed troubled that UA had, in effect, shifted the burden of proof to Doe—requiring him to prove consent, rather than requiring the university to prove a lack of consent.

 

Cordi was repeatedly pressed on the issue of notice—a point of vulnerability for the university given UA’s allowing the accuser to change her theory of the offense, and given that Doe was found guilty even though UA acknowledged he didn’t know of the accuser’s alleged incapacitation. This exchange came with Judge Colloton.

 

In what was clearly the most encouraging section of the oral argument for Doe, Judge Erickson sharply rebuked Cordi’s fact-free suggestions that it was wholly implausible, to appease campus protesters, that a university (or, he added, any other entity) would seek to find accused males guilty. (One wonders what academic environment Cordi has been witnessing the past eight years.) Erickson cited the #metoo/believe-all-women agenda to show the absurdity of Cordi’s claim. If Erickson were to apply this sentiment in an opinion, he would join Amul Thapar and Amy Barrett as Trump nominees to aggresively side with accused students.

 

This exchange, between Cordi and Judges Erickson and Colloton, got to the heart of the accused student’s Title IX argument given the specifics of his case–a guilty finding coupled with a punishment that seemed very light if UA actually believed in the merits of its finding. Noting the campus pressure to do more on behalf of female complainants, Colloton wondered, “Why wouldn’t it be plausible that they’ll say, ‘Well, we’re going to have to find more men responsible and maybe we’ll go light on the punishment to kind of smooth things over?'”

 

It seems possible, however, that the panel will not reach the cross-examination count, as seen in the closing section of the argument between Judge Colloton and Zachary. Colloton faulted Zachary for not pleading specific questions that were unasked in the UA hearing, which, of course, Zachary couldn’t do because Arkansas withheld the transcript of the hearing from Doe.

 

The overall take: all three members of the panel (and especially Erickson and Shepherd) seemed to believe that Arkansas wrongly found Doe guilty. All seemed at least somewhat dubious that UA had provided Doe with sufficient notice. And Colloton and Erickson (the latter strongly) seemed skeptical of the district court’s Title IX rationale. They didn’t telegraph their ruling, however, and anything from a 3-0 win to a 3-0 loss seems theoretically possible. But a win for Doe seems the likelier outcome, in what has the potential (if so) to be a very important ruling.

Johnson & Wales: The Disciplinary Panel That Thought Alike

A district court recently denied summary judgment to Johnson & Wales University in a lawsuit filed by an accused student, clearing the case for trial. (Since issuance of the Obama-era Dear Colleague letter, only two trials in this area have occurred—Boston College and Brown—both ending in victories for the accused student.) The trial will focus on whether JWU’s handling of the case violated an explicit promise of fair treatment for the accused that its procedures provided.

As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.

At a minimum, this was an ambiguous case. The accuser, identified in court documents as Mary Smith, waited months before coming forward, alleging sexual assault in the fifth and sixth examples of sexual contact in a long-extinguished relationship. Even then, the charges were initiated not by her, but by her boyfriend, B.K., who then was allowed not to testify at the hearing because he served as Mary’s advisor. Unlike many campus cases, the accused student, identified here as John Doe, vehemently denied the first alleged incident even occurred—and seemed to have support for that proposition from his roommates. And as to the second, which John maintained was consensual, even Mary, according to the JWU complaint report, “was not sure if what occurred was considered sexual assault.”

The affidavits from the three JWU panel members offered identical sentiments and, often, language—suggesting that they either collaborated on the documents after the fact or exhibited a degree of groupthink that raises questions about the fairness of the proceedings.

According to Zmarlicki, her training led her to approach the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” Codding said that she too approached the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” What about Brown? He affirmed that he approached the case “without any predisposition or bias,” allowing him to reach a decision with “an open mind.” The three JWU employees did not explain how they came up with the exact same formulation to describe how they approached to the case. (Couldn’t one of them, at least, have used synonyms to make things less obvious?) The university’s position is that outsiders must trust that when these JWU employees said, using the exact same words, that they acted without bias and with open minds, they actually did so: JWU neither recorded nor kept a transcript of the hearing.

Zmarlicki testified that the panel asked “probative” questions of both John and Mary, but she didn’t say what any of those questions were. According to Codding, the panel asked “probative” questions of each student, but she, too, couldn’t identify any of those questions. And Brown? He recalled the panel asking “probative” questions of John and Mary—questions that his affidavit didn’t detail. Again, couldn’t one of the panelists have come up with another word to describe their questioning strategy?

How did each panelist reach the decision? Zmarlicki affirmed that despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” she made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” Codding, despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” And Brown? Despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” he made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” If this trio were JWU students, they would have been brought up on plagiarism charges.

Zmarlicki claimed that the panel engaged in a “lengthy” deliberation (but couldn’t recall the “precise duration” of their discussions). Codding also deemed the deliberations “lengthy” but couldn’t recall the “precise duration” of their discussions. And Brown? The panel deliberated for a “lengthy” period of time—but he couldn’t remember the “precise duration” of their discussions. These statements make no sense: according to their affidavits, each panelist approached the case in the exact same way and responded to the evidence presented in the hearing identically. If their affidavits are truthful, their deliberations should have taken 60 seconds.

Beyond the absurdity of three people affirming their fairness by using the exact same words, over and over again, to describe what were purportedly their personal recollections, the absence of the complaining witness, B.K., from the affidavits was striking. All three panelists said they read the case file. So they knew that Mary’s new boyfriend filed the original complaint and was a key witness in the case. Yet none expressed concerns that they never heard from him. Nor did they seem worried that they hadn’t been able to hear from John’s roommates, whose versions of events backed John, not Mary. None of the affidavits explain why the panel members didn’t press JWU officials to ensure they heard from all relevant witnesses despite each of them claiming they operated with a “fair mind.”

Perhaps JWU simply assumed a summary judgment win was inevitable. Now, however, the school is left with a trial on a record claiming that three people, from three different parts of the university, described the case and their actions regarding it in identical ways. A legal strategy that presents their own decisionmakers as either mindless automatons or so uncertain of the facts that they needed to have their recollections written by someone else seems like a bad look for any university.

Trump-Nominated Judge Likely Swing Vote on Oberlin Case

A divided Sixth Circuit panel considered the latest accused student appeal—in a case from Oberlin College. So far, Trump appellate nominees (Thapar, Barrett, and St. Eve in their opinions, Carson in oral argument) have been strongly sympathetic to upholding the rights of accused students. In the Oberlin panel, by contrast, oral argument suggests that a Trump nominee—Chad Readler—is the swing vote.

Among the federal victories for universities, the Oberlin district court opinion, penned by Judge Solomon Oliver (a Clinton nominee), stood out as among the most troubling. The accused student had unusually strong evidence (Oberlin revealing a 100% guilty rate in adjudications, statements from the former Title IX coordinator who was promoted to dean, the accused student’s own Oberlin advisor tweeting out how he believed “survivors,” an OCR inquiry opened against Oberlin a few months before his case). The student also had favorable circuit precedent which cautioned district courts to grant university motions to dismiss on these issues only if the student lacked a “wing and a prayer” (in Baum’s language) of winning, and which stressed the importance of the kind of statistical evidence (Miami) that the Oberlin student possessed.

The Oliver decision, unusually for a motion to dismiss, construed debates over most of these questions in Oberlin’s favor. The 100% guilty rate, for instance? Not a problem, according to Oliver, since there were many cases in which the accused student ultimately didn’t get punished (because the accuser chose not to go ahead with the adjudication, not due to anything Oberlin did). The opinion itself appeared on PACER just after midnight on April 1, almost as if it was rushed to release by March 31.

The panel hearing the appeal consisted of Judges Readler, Raymond Kethledge (W. Bush), and Ronald Gilman (Clinton). Judge Readler hadn’t handled any campus due process case; Judge Kethledge had stayed the order in the Michigan case for the UM president to appear personally in court to defend his university’s policies but hadn’t addressed the substance of the university’s policies. Judge Gilman, by contrast, had issued a concurrence that was in effect a dissent from the due process section of Baum; and had dissented from the Title IX section of the opinion. As Judge Julia Smith Gibbons noted in a concurrence, Gilman seemed to demand summary judgment standards for the motion to dismiss, at least for accused students in Title IX cases.

Gilman didn’t speak in the Baum oral argument, but he asked the first question in yesterday’s hearing—and each of his three questions of the accused student’s lawyer, Chris Muha of KaiserDillon in Washington DC, made clear he intended to apply the spirit of his Baum dissent rather than the actual ruling in Baum to this case. This comment, for instance, featured Gilman downplaying the significance of the 100 percent conviction rate by (very oddly) holding that in cases where the student filed a complaint but did not go forward, Oberlin had actually “a lot of times . . . exonerated” the male student.

 

There was, it’s worth noting, nothing in the complaint to suggest that Oberlin “exonerated”—or even investigated—students who didn’t go through the formal hearing process; in these cases, it seems as if the accusing student chose not to go forward with her complaint. (That Gilman at one point referred to the district court judge as “Judge Solomon” gave a sense of how much he had grappled with the actual record in the case.) The Gilman standard would allow schools that return guilty findings against every male student who’s charged to nonetheless avoid gender bias lawsuits as long as a small number of female accusers choose (for reasons unrelated to university policies) not to seek formal adjudication.

With Gilman a near-certain vote for the school (he asked no questions of Oberlin’s lawyer), the accused student will need the votes of both Kethledge and Readler to prevail. Judge Kethledge seemed deeply skeptical (to put it mildly) of the briefing filed by Oberlin:

 

A bit later, Kethledge commented that he wasn’t personally criticizing Oberlin’s lawyer, Aaron Herzig, who simply had to play the (presumably very bad) “hand” he was dealt.

 

Kethledge also probed the question of whether former Title IX coordinator Raimondo’s decision to appoint as the accused student’s advisor a college dean who tweeted out that he believed “survivors” might suggest a bias in the process.

 

In perhaps the most ominous passage from the oral argument for Oberlin, Kethledge implied that the district court opinion had gotten it wrong by focusing on the gender bias evidence in a “silo” fashion rather than examining it in its totality.

In another favorable comment for the accused student, Kethledge expressed skepticism about the Gilman/Oliver standard that cases where the accused student chose not to go forward with her complaint show a lack of gender bias in cases where an adjudication did occur. Why, he wondered, should Oberlin get “credit” for a decision that had nothing to do with the acts or policies of a college administrator?

 

And in the argument’s most interesting section, Kethledge—implicitly, perhaps, picking up on the arguments offered by Judge Barrett in the Purdue decision—wondered what was contrary to “common sense” about reasoning that an egregiously wrong decision by the school might, in and of itself, suggest a degree of gender bias in the outcome.

 

At that point Judge Readler jumped in, commenting on a factual anomaly of the case—Oberlin’s decision to return a guilty finding based on incapacitation, even though the accuser’s claim was sexual assault by force, and she described an event where she was very much aware of what was occurring. This point aroused Judge Kethledge’s interest as well.

 

Readler’s questions tended to be more informational, making it harder to get his read on the case than Kethledge or Gilman. (He ended the argument, for instance, to asking what specific evidence existed of gender bias for the second prong of the erroneous outcome claim.) If Readler joins a Kethledge opinion, however, this case could yield a significant decision. Given that a dissent, either way, seems a near-certainty, it may be some time before we know.

Judge McElroy, Fairness, and Johnson & Wales

This year has featured a number of important breach of contract victories for accused students in New England. An accused student from Boston College prevailed in the first post-Dear Colleague letter jury trial, in September. In a detailed ruling, Judge Alfred Covello denied summary judgment to Yale in the Jack Montague case, prompting the university to settle. And a settlement also occurred in the Quinnipiac College case after Judge Janet Arterton denied summary judgment to the school (on Title IX grounds as well). Another denial of summary judgment occurred in the Bard lawsuit, although Judge George O’Toole didn’t offer a written opinion outlining his rationale.

The latest university to experience a denial of its breach of contract summary judgment motion was Jonson & Wales University, in Providence; Judge Mary McElroy issued a ruling late Tuesday afternoon on the motion. The facts of the case: A male and female student had a brief, casual sexual relationship. Many months later, the female student’s new boyfriend told the JWU police that her final two encounters with her ex-boyfriend were nonconsensual. The female student elected not to file Title IX charges—only to change her mind a few months later.

The case contained an unusual number of unfair elements. Perhaps most seriously, JWU allowed the boyfriend—who was, after all, the person who filed the original complaint—to serve as the female student’s hearing advisor, thus shielding him from questioning by the disciplinary panel. The accused student wasn’t allowed to take a copy of the accuser’s 18-page statement for review before the hearing. He couldn’t submit questions to be asked of the accuser. The complaint suggested that the preponderance standard was inherently unfair given the other procedural shortcomings of the JWU system. And after the inevitable guilty finding ensued, JWU (for reasons it didn’t explain) denied to the accused student’s lawyer a copy of the training materials given to the disciplinary panelists. The appeal was denied (Doe claimed he had new exculpatory evidence), and Doe sued.

The case was assigned to U.S. District Judge John McConnell. JWU didn’t even try to dismiss the breach of contract claim, focusing instead on the Title IX count. McConnell seemed troubled by JWU’s refusal to turn over the training materials. More broadly, he noted that, given the facts of the case as alleged in the complaint, he could “find no reason at all as to why . . . the result was Mr. Doe’s expulsion. The only inference that one could draw from that considering all the facts is that gender played a role.” This was one of the broadest Title IX holdings of the dozens of accused student lawsuits that have survived a motion to dismiss their Title IX count. But the May 2018 ruling attracted comparatively little attention, perhaps because McConnell delivered it from the bench.

The hearing on JWU’s summary judgment motion was delayed to accommodate Doe’s lawyer, James Ehrhard, who had a trial in another case. Shortly thereafter, McConnell turned the case over to the newly-confirmed Nancy McElroy, originally an Obama nominee who was confirmed earlier this year as part of a package deal between the White House and Senate Democrats.

At oral argument last month, McElroy seemed dubious about the Title IX count (which, given relevant First Circuit precedent, is very difficult for an accused student to meet in any case). Her ruling suggested that Doe would need a “smoking gun” or highly unusual statistical evidence to prove a sufficient degree of gender bias.

The ruling’s breach of contract section, however, provided a complete victory for the accused student—and with language that resembled McConnell’s broad Title IX rhetoric from the motion to dismiss decision.

In its briefs, JWU urged near-total deference by the court to university decision-making. And although the JWU procedures had promised Doe “every reasonable effort to be fair to all involved” and a resolution that was “prompt, fair and impartial,” university filings implied this language was superfluous, and the circumscribed procedures that Doe received in the case were all to which he was entitled. The university expanded on this point in a four-page single-spaced letter informing the court of the recent First Circuit Boston College decision (BC II), which it argued “mandated federal restraint.”

Judge McElroy disagreed. In so doing, she relied heavily on the First Circuit’s 2018 Boston College (BC I) decision, in which a panel with no overlap to the BC II panel articulated a much less deferential role for the federal judiciary in determining whether fairness case should proceed to trial. The BC II case, she argued, “presented a very different situation” than the JWU matter.

“’Fair,’” McElroy correctly noted, “is not a term with a commonly accepted definition. It is conclusory: its precise meaning fluctuates with the context in which it is used.” Accordingly, the specifics of the case at hand mattered—and, indeed, procedures that might be fair in the context of a plagiarism allegation might not be in the context of a Title IX adjudication. Did fairness require the types of procedural protections—notice, access to relevant evidence, ability to submit questions of adverse witnesses—that JWU denied to Doe? McElroy concluded that “in the context of an uncounseled college junior, facing the frightening and very serious prospect of possible expulsion from school, in a case of contrary ‘he said/she said’ allegations, a reasonable juror could determine that the meaning of ‘fair’ includes being provided more protections than Doe alleges he received.”

McElroy addressed the matter in greater detail in an extended footnote. “It appears,” she observed “that JWU put a significant burden on Doe to ascertain the details of the process, rather than provide him with a detailed description.” For instance, “a reasonable jury could find that requiring Doe to discern what questions he should ask (e.g., could he propound written questions before Ms. Smith was interviewed by the panel or after she gave a statement; could he make an opening or closing statement, what would constitute ‘personal knowledge’ by a witness, would a roommate sleeping in the room close to the bathroom who heard nothing be a witness ‘with personal knowledge,’ etc.), is unfair when students are strangers to such a process and rely entirely on what is told to them to inform their understanding of what they are up against.” Her conclusion? “A reasonable juror could decide that it is not ‘fair’ to require a student who knows little or nothing to figure out what s/he does not know in order to ask productive questions.”

McElroy therefore offered a broad definition of fairness that relied on a common sense application of the concept. In this respect, her ruling joins a handful of cases—Brandeis, Amherst, George Washington, Notre Dame, Yale—where courts, encountering a complaint of a seemingly innocent student arbitrarily found guilty, have shown scant deference to the university finding and instead have stressed the need for a truly fair adjudication.

Barring a settlement, the case will now proceed to trial—which would make it the third post-Dear Colleague letter accused student trial, after the BC case and the January 2020 scheduled trial in the Bard case.

Judges Tough on Both Sides in Tenth Circuit Appeal

Wednesday featured the fifteenth Appeals Court oral argument in a post-Dear Colleague letter lawsuit from an accused student. The Tenth Circuit heard an appeal of a summary judgment victory by the University of Denver—the first lawsuit from an accused student before the circuit. After oral argument, it’s hard to tell which side will prevail. Indeed, of the fifteen oral arguments to date, this panel was by far the toughest to read.

The complaint and the expert report in the case, from University of Colorado Law professor Aya Gruber, presented the story of a single-investigator model run amok, with biased assumptions by the two investigators producing a biased outcome. As Gruber put it, “Nearly all the investigative deficiencies, sloppy reasoning, and inconsistent application of credibility determinants benefit Complainant. Reading the Report, it is as if the investigators were under a directive to collect, manage, and analyze the evidence in the ‘light most favorable to the complainant.’” Of the 35 Title IX cases at DU between the Dear Colleague letter and 2016, every accused student was male; and all but one of the accusers was female.

The DU case involved an allegation of sexual assault through coercion—the accuser claimed that she went to a male student’s room, drunk, and that he told her she couldn’t stay in the room with him unless they had some form of sex. She said she went forward because she was very drunk and feared being punished by RA’s for intoxication if she left the room. There was no hearing or cross-examination of any kind. The accuser gave two statements to investigators (whose report presented neither of them verbatim); despite substantial differences between the statements (in her initial statement, the accuser improbably claimed that the coerced sex might have lasted for almost four hours, all while the accused student’s roommate was nearby), the investigators deemed her credible and found the student guilty.

The accused student sued, but at summary judgment, Judge Philip Brimmer sided with the university. Rejecting allegations of gender bias in a system that, during the first five years of the Dear Colleague letter regime, featured only male accused students, he noted that “not every Title IX complaint results in an investigation or a finding of responsibility.” (This standard would allow universities to defeat Title IX lawsuits simply by finding one student not guilty over a multi-year period.) Brimmer also held that whatever biases existed in the DU system, they came from a pro-accuser mindset rather than a pro-woman mindset. (Again, this was a system in which every accused student over a five-year period was male.)

The Tenth Circuit panel included Judges Robert Bacharach (Obama nominee), Joel Carson (Trump nominee), and Monroe McKay (a 91-year-old senior judge nominated by Jimmy Carter). The appeal raised two issues—Title IX and the question of whether the Dear Colleague letter made DU a state actor and therefore subject to the due process clause. The panel showed no interest in the latter question and seems likely to affirm the district court’s granting DU summary judgment.

The Title IX issue, however, was a far closer call, with each judge asking very difficult questions of both sides.

Phil Byler opened for the accused student; all three panel members, but especially Judge Bacharach, pressed him on whether the summary judgment record actually supported the arguments about gender bias made in his brief, as in this exchange with Bacharach.

If DU wins, this exchange will likely indicate why—that the panel, however they approached the issue theoretically, doubted that the record at summary judgment could not be enough to prove the accused student’s claims.

The questions for DU lawyer Jim Goh, by contrast, focused less on the record itself, and more on the appropriate standard for a Title IX case. Two particularly intriguing offerings came from Judge Carson. His first question implicitly referenced the Purdue opinion, wondering whether the Seventh Circuit’s holistic approach to analyzing gender bias might be the better way to address the question:

As the argument proceeded, Goh fell back on the assertion (common in these cases) that any bias existing in DU’s procedures was pro-accuser bias, rather than gender bias. All three panelists seemed somewhat skeptical of this line of argument, to an extent that could make this ruling a highly significant one if the judges carry their questions to their logical conclusions. (That’s a big if, of course, and it’s entirely possible the judges were simply playing devil’s advocate on this question.) Here was Bacharach:

Here was Carson, wondering about the equal protection component of a policy that as a practical matter only affected male students.

And here was McKay, noting that a campus poster’s emphasis on “rape” (to the effect that regretted sex was rape) suggested a crime where males usually were the perpetrators.

Regarding the poster (both sides said they were unsure if the poster came from the DU administration or from an accusers’ rights student group), Bacharach wondered whether the district court had inappropriately tipped a factual analysis in favor of the school (which filed for summary judgment) rather than the accused student in deciding that it didn’t raise questions of gender bias.

The final exchange of the oral argument, generated by Judge Carson’s second intriguing offering, explored whether Purdue could raise questions about the single investigator model, at least in cases where (like here) the investigators, rather than the accuser, produce a summary of the accuser’s statement. (Oddly, Goh said he hadn’t read Doe v. Purdue, which was decided almost three months ago.) Carson noted that Judge Barrett’s Purdue opinion had noted the potential problems when a university made a Title IX decision that relied not on the accuser’s own words but on a “statement” prepared by potentially biased university employees.

If this case had reached this panel as a motion to dismiss, it likely would have yielded a victory for the accused student. But at the summary judgment stage, the judges seemed torn between what they saw as weaknesses in the student’s factual case and weaknesses in the university’s understanding of Title IX.

In the end, Carson seemed more sympathetic to the accused student, Bacharach seemed to tilt to DU, and McKay was a tough read. But this is a case in which anything from a 3-0 university win to a 3-0 student win seems possible. Based on the questions, a DU win likely would produce an opinion that hewed closely to the facts at hand. But a student win could generate a significant opinion.

Uncertain Outcome in Critical Occidental Case

In the early stages of the campus due process crisis, three cases in particular generated national attention—due to a combination of outrageous facts and a member of the national media choosing to examine the case in greater detail. One was Amherst, in which the college found an innocent student—and a possible victim of sexual assault—guilty. Another was the University of Michigan, in which the school utilized an almost hopelessly unfair process to reach a guilty finding despite strong exculpatory evidence and the accuser’s clear motive to lie.

The third case was Occidental, subject of this lengthy profile from Richard Dorment in Esquire. Amidst a campus environment as extreme on this issue as any in the country at any point since the Dear Colleague letter, Occidental returned a guilty finding despite an almost unprecedented occurrence—contemporaneous text messages from the accuser indicating that she had consented. The accuser herself said she was influenced to file charges by an activist Occidental professor, Danielle Dirks, who allegedly told her that the accused student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and ‘from a good family.’”

The accused student sued, both in state and federal court, in autumn 2015. The federal lawsuit was stayed, while state litigation proceeded at a glacial pace. In June 2017, Superior Court Judge Mary Strobel ruled in Occidental’s favor, but in an almost apologetic fashion. “Exercising its independent judgment,” Strobel wrote (with a touch of understatement), “this court nay have reached a different result than the external adjudicator based on Roe’s text messages with Petitioner and other evidence suggesting she had capacity to consent to sex.” Strobel concluded, “Given the severe consequences of the administrative decision, it may be appropriate for the Court of Appeal to provide additional guidance on the standard of mandamus review for student discipline proceedings involving charges of sexual misconduct.”

Since Strobel issued her opinion, the Court of Appeal has issued an array of decisions bolstering the procedural rights of accused students. But it largely has steered clear of the issue raised by Judge Strobel. The one exception was a recent Court of Appeal decision in another Occidental case, where the accused student appeared to have been guilty. There, the Court avoided the type of reconsideration of the standard that Judge Strobel seemed to want: “Our substantial evidence standard is extremely deferential. We do not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before us ‘with a strong presumption as to their correctness and regularity. We do not substitute our own judgment if the [agency’s] decision is one which could have been made by reasonable people. . . . Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence. We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict.” [cleaned up]

Last week, the Occidental case finally reached the Court of Appeal. The oral argument, however, revealed few clues about a potential outcome. Doe’s lawyer, Mark Hathaway, effectively illustrated the absurdity of a scheme of absolute deference to the substance of decisions by a private institution—especially, as in a case like this, by a single person (the external adjudicator) hired by a private institution.

The three judges on the panel asked Hathaway only one, non-substantive question.

Two of the three judges had questions for Occidental’s lawyer, but they raised somewhat extraneous issues.

First, Justice John Segal explored the disparate (and, presumably, gender-biased) manner through which Occidental handled the case. Two heavily intoxicated students had sex. But only one—the male—was punished. Either both should have been, or neither.

Occidental’s lawyer attempted to parry by blaming Doe for not filing a complaint himself, but Segal seemed unpersuaded.

Then, at the tail end of the oral argument, Justice Dennis Perluss raised an intriguing question about Occidental’s odd definition of sexual assault, which, as written, prohibited both sexual contact without “effective consent,” but also while incapacitated. Perluss seemed puzzled by the superfluous language.

Either of these questions, in theory, could form the basis for a win for Doe. Justice Segal’s questions pointed to the gender-biased assumptions behind Occidental’s adjudication of the case. Justice Perluss’ question opened up the possibility that the Court could consider the fairness of Occidental’s illogical definition—which, in this case, provided an opening for the school to say that someone who had consented nonetheless was a victim of sexual assault.

The resulting decision will be of unusual importance. Of the more than 500 lawsuits since the Dear Colleague letter, only the Amherst accused student had clearer evidence that the accuser had actually consented. If the Court says that Occidental had “substantial evidence” for its finding in this case, the standard would basically translate into a rubber stamp.

The audio of the entire oral argument is here.