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.

Near-Certain Defeat for Accused Student in Seventh Circuit Case

Normally, when an Appeals Court holds an oral argument on a lawsuit filed by an accused student, I write up the oral argument with clips. No such detail is required for today’s hearing in the Columbia College of Chicago lawsuit before the 7th Circuit: the university is going to win.

Typifying the oral argument, Judge Ilana Rovner opened the questioning of the college’s lawyer with a question that implied it was “obvious” the college would win on the breach of contract claim.

The accused student drew a fairly unfavorable panel—Judges Rovner (an H.W. Bush nominee but a generally liberal vote on hot-button issues in recent years), Bauer (Ford nominee), and Manion (Reagan nominee on senior status). None of the Trump nominees to the court were assigned to the panel; nor was either of the court’s two full-time Reagan nominees. The case also had an important personal twist: Judge St. Eve, now a member of the court, had decided for the university when she was a district court judge, so a win for the accused student would have required the judges reversing one of their colleagues.

The accused student’s complaint presented strong evidence of innocence and inferential evidence of gender bias (all that he’d likely have at this stage, at a low-profile school like CCC); the panel was disinterested in the first question and seemed to be envisioning a rigorous pleading standard for the second, in which as long as the college could offer some plausible gender-neutral description of its behavior, it was shielded from a Title IX claim. Doe’s lawyer, Eric Rosenberg, was peppered with skeptical questions; the college’s lawyer was asked basic informational questions about the college procedures, and ended his argument by suggesting that this issue shouldn’t be seen through the lens of gender bias, because it was hardly uncommon to see females accuse males of sexual assault (at unnamed institutions other than CCC, not in the record).

The all-but-certain college victory in this case sets up a race to the altar in the Circuit—will the Purdue decision (a likely student win) come first, or will this decision? Whichever appears will be the Circuit’s first decision on this issue since the Dear Colleague letter.

Lively Oral Argument in Third Circuit Clarion University Case

Today, the Third Circuit heard its first direct appeal of a campus due process lawsuit. (Two other post-Dear Colleague lawsuits have come before the Circuit, but on tangential issues—a claim of qualified immunity in the William Paterson case, and a question of the powers of the Bucknell Police Department in the Bucknell case.) This case involved an African-American student from Clarion University in Pennsylvania (a public institution). The district court granted summary judgment to Clarion on all counts, including Title IX, due process, and equal protection. The student appealed.

The result was a lively oral argument that went nearly 25 minutes beyond the allotted time. Clarion becomes the sixth lawsuit from an accused student awaiting a decision before an Appeals Court. Three (Oregon, Dayton, and UMass) appear to be near-certain or likely defeats. A fourth (Purdue) featured an oral argument highly sympathetic to the accused student, but no opinion has appeared nearly six months later from a circuit that normally works more quickly. A fifth (Maryland) was difficult to call—as was today’s Clarion argument. Like the Maryland oral argument, however, one judge appeared strongly inclined toward the university position, leaving the accused student little margin of error.

The Clarion case presented a somewhat unusual fact pattern in the array of due process lawsuits: the accused student, Tafari Haynes, was arrested and faced criminal charges as Clarion moved with lightning speed to conduct a Title IX adjudication. The rush to act was puzzling because Haynes already was suspended, and thus posed no threat to campus safety; and the parties were awaiting a DNA test that seemed likely to shed light on the accuser’s claims. (The DNA tests would show no match to Haynes, raising the possiibility of actual innocence, and all charges were dropped after the accuser decided she did not want to proceed with the case.)

Clarion’s handling of the Title IX adjudication process raised a number of red flags. Significant allegations of bias existed against the investigator, Matthew Shaffer, who repeatedly described the accuser as a “survivor” even though he conducted no investigation into the case. Shaffer also requested testimony from an “expert” witness—from a local rape crisis center—who had no familiarity with the case. The accuser said that Clarion’s president had told her that Haynes would be expelled before the hearing took place. The chair of the hearing panel—before the decision was made—declined to ask the accuser any questions, instead informing her, “I’m also sorry that this happened to you and that you’ve had this experience, and I wish you the best, I really do.”

On another front, between 2009-2013, seven of the twelve students tried for sexual misconduct (Clarion called its procedures a “trial”) were African-American, even though African-Americans made up only 5.9 percent of the student body.

Critically, however, Haynes acted on advice of counsel to avoid the possibility to self-incrimination, and did not participate in the hearing. That was enough for the district court to dismiss his due process claim (“Plaintiff can have little complaint about the [discipline board’s] ultimate decision, since he failed to appear and give his side of the story or submit a written statement”). Judge Billy Roy Wilson also found “no constitutional right to active participation of counsel in student disciplinary hearings, even when the student is facing concurrent criminal charges.” And he dismissed Haynes’ equal protection claim on grounds that his statistical evidence that African-American students were disproportionately charged showed, at most, “evidence of bias or prejudice within the student body.”

The Third Circuit panel that heard Haynes’ appeal consisted of Thomas Ambro (Clinton), L. Felipe Restrepo (Obama), and Morton Greenberg (Reagan). Haynes might be able to pull through with a 2-1 victory. But he also could lose 2-1, or suffer a 3-0 defeat focused on his decision not to attend the hearing. Joshua Engel argued for Haynes; Harry Hopkirk argued for Clarion.

Restrepo seemed highly likely to side with Clarion; he repeatedly wondered whether, since Haynes didn’t appear at the hearing, the student had forfeited his right to make a subsequent due process claim.

This line of questioning recalled the recent UMass case before the First Circuit, where the panel’s insistence that the accused student needed to have made a (futile) request for a right to cross-examination indicated a likely defeat.

The panel additionally pressed Engel on the consequences of Haynes’ non-attendance, albeit in an odd way. Based primarily on a single footnote in Clarion’s brief, the judges seemed open to believing that it was at least possible that Haynes’ criminal attorney could have shown up at the hearing, and then been allowed by Clarion officials to participate and ask questions of the accuser. (Clarion’s general rules don’t allow cross-examination, and prohibit a student’s lawyer from speaking in the hearing.) While anything is possible, I’m not aware of any Title IX case in which a university, at the last minute, has changed its procedures in such a fundamental way to grant more procedural protections to the accused. The probability that Shaffer would have done so, given his overall record in the case, would seem to be close to zero. Each of the panelists, however, and especially Restrepo and Greenberg, appeared to believe otherwise. Here’s a screenshot of the relevant section of Clarion’s code:

Capture

To the extent that the court concludes Clarion might have allowed cross-examination, the university would seem likely to prevail.

Clarion’s claim that cross-examination might have been allowed, however, produced a remarkable exchange between Judge Ambro and Hopkirk, where Clarion’s attorney eventually had to admit that the university had never informed Haynes or his attorney that the university might modify its procedures to allow the lawyer to conduct cross-examination:

Ambro, in general, appeared sympathetic to the idea that the Sixth Circuit got it right, and that in campus sexual assault cases, there should be some form of cross-examination.

Ambro’s dogged questioning style also propted Hopkirk to concede that Shaffer acted as a “prosecutor”—even though Clarion rules describe him as an investigator:

This latter point prompted the most favorable question to Haynes’ position from Judge Greenberg; the judge noted that in an administrative matter, the university was supposed to be neutral before the end of the adjudication process:

At other points in the oral argument, however, Greenberg seemed much less inclined toward Haynes’ position. He joined Restrepo in suggesting that Clarion might have allowed Haynes’ lawyer to conduct cross-examination if the lawyer had appeared for the hearing. He seemed unconvinced that a “victory” for Haynes before the Appeals Court would do the student any good. And he pressed Engel on the degree to which Clarion’s policies resembled those of other schools (as Engel noted, they did), raising the possibility that he worried about a broad decision that might extend well beyond the facts of this specific case.

Because Greenberg was phoning into the hearing, his participation at times seemed somewhat disjointed. Given Restrepo’s line of questioning throughout the session, Haynes would seem to need Greenberg’s vote to prevail.

The panel, intriguingly, spent several minutes discussing possible remedies–an issue, obviously, that would be relevant only if Haynes prevails. Greenberg asked several questions in this section of the argument.

Audio of the full oral argument is at this link.

At the Appeals Court level, the next oral argument in a lawsuit from an accused student will come from the Seventh Circuit, in the Columbia College-Chicago case.

Ambivalent Oral Argument in Fourth Circuit U-Maryland Case

On Tuesday, the Fourth Circuit held the twelfth appeals court oral argument in a lawsuit brought by an accused student in the post-Dear Colleague letter era. The case originated at the University of Maryland; it raised important due process concerns because the accused student never had a chance to cross-examine his accuser; and because the university withheld excupatory evidence (the accuser’s initial statement to police). The district court had sided with the university; it’s not entirely clear how the Appeals Court will come down.

The plaintiff in the Maryland case, identified only as John Doe (JD), wasn’t the most sympathetic character: by his own admission, he traded places in bed with another male student after a female student had already fallen asleep (there was some dispute about whether he did this on a dare), and then initiated sex with her. But he was consistent in saying: (1) that he believed the female student consented to the sex, and knew that she was having sex with him (he had a beard, the male student he replaced in the bed did not); and (2) he stopped as soon as the female student withdrew consent.

The accuser went to the police and gave a statement; they declined to bring charges, regarding the incident as consensual. She then filed a Title IX complaint, and the university’s investigator, on the same evidence, concluded she had been assaulted. When asked about this discrepancy, the investigator—not reassuringly—cited the trauma-informed training he had received. Maryland’s procedures had recently been changed to eliminate all cross-examination (since “anyone who has gone through a cross-examination never wants to go through a cross-examination again,” President Wallace Loh explained); the accuser didn’t even bother appearing for the hearing. And the university forced JD to defend with one hand behind his back—it didn’t give him a copy of the police report (in which the accuser’s story differed from what she told the investigator) and it didn’t allow him even to make a statement in his own defense before the disciplinary panel.

At the district court level, JD had the bad luck to draw Judge Paula Xinis, an Obama nominee. At oral argument on the university’s motion to dismiss, Xinis detected no due process problems with Maryland not providing the statement that the accuser made to police, even though this was potentially exculpatory information. After all, the judge breezily suggested, the accused student could have: (a) hired a lawyer, who could have (b) filed a public records request; and (c) somehow received the statement before his hearing commenced. (In the real world, there was no chance of this happening.) In her opinion, Xinis dismissed the due process claim on grounds that an accused student had no right to cross-examination. To sustain her contention, she curiously cited to a Sixth Circuit case that held “a choice between believing an accuser and an accused . . . cross-examination is not only beneficial, but essential to due process.” Of the 167 federal court rulings on this issue since the Dear Colleague letter, the Xinis opinion was one of the two (along with the Purdue decision appealed to the Seventh Circuit) most indifferent to the rights of accused students. As civil liberties lawyer Scott Greenfield observed at the time, Xinis operated under an “approach “suggests that the only way these proceedings could have integrity is to guarantee that they result in Doe being found guilty.”

JD appealed, producing Tuesday’s argument. (You can read JD’s brief here; Maryland’s response brief here.) The panel draw was very favorable for Maryland: Robert King, author of the troubling Mary Washington decision; Obama nominee Stephanie Thacker; and Clinton nominee Diana Motz, for whom Judge Xinis previously had clerked. Motz was also part of the panel that decided against the Duke lacrosse players in their civil suit against Durham.

(An explanatory note: in contrast to other Appeals Courts, which release their audio and sometimes video files the day of the oral argument, the Fourth Circuit doesn’t do so. The audio file was just posted this morning. Ron Schwartz argued for JD; Christopher Lord for Maryland.)

Of the due process Appeals Court arguments, this one was, by far, the least clear in terms of predicting an outcome. Perhaps the most significant due process issue—that in a case that in part revolved around the accuser’s credibility, JD never had a chance to cross-examine the accuser and the appeals panel never saw her in person—barely seemed to register with the panel. Instead, there were lots and lots of questions about details of the case, with conflicting factual allegations. Virtually all of the argument focused on the due process claims; it seems unlikely the panel will reverse the district court on Title IX given how few questions they asked on the topic.

For JD, the most encouraging questions came from Judge Thacker, who asked tough questions of both sides. Just over two minutes into the university’s oral argument, Thacker pushed back on the Maryland claim that the campus hearing board reached credibility judgments. She wondered how this could be given that they never heard from witnesses or allowed JD a chance to cross-examine.

This line of questioning, however, was largely dropped after that point, and the panel didn’t explore Lord ’s (dubious) point that cross-examination wouldn’t have mattered.

The panel spent a bit more time on the other key due process point—that the university had denied to the accused student the exculpatory statement the accuser supplied to police. Again Thacker asked the key question; but, again, she didn’t follow up.

Judge King, meanwhile, often seemed perturbed with the university’s actions, but focused on minor elements of the case. Here, for instance, he was worried about Maryland’s decision to schedule the disciplinary hearing during finals week—an inconvenience, obviously, but not the most serious due process issue in the case. For not the last time, Judge Motz in effect presented the university’s defense more effectively than Lord did.

And here he focused on the university initially sending JD the wrong procedures for the case—prompting Motz to jump in, once again, arguing Lord ’s case for him.

Of the three judges, Motz was the easiest to read, and she seemed inclined to side with Maryland. Her first question strongly implied that she considered JD guilty under virtually any permutation of the facts—a point pushed hard by the university but challenged strongly by Schwartz.

Detailed discussions occurred between the panel and the two lawyers over whether the accused student had a right to call witnesses: Schwartz said he didn’t, Lord said he did, and the judges seemed baffled. Similar detailed discussions came over when JD was informed he could have a lawyer, and what effect JD’s not appearing for a “conference” with the Title IX office had on the case. (The full audio of the oral argument is here.)

The possible outcomes here range anywhere from a 2-1 victory for JD to a 3-0 win for the university. Thacker seems likely to be the decisive vote; if she sides with JD, it would seem that King would follow along. Given how strongly Motz pushed the university’s position, however, a university victory would seem the likeliest outcome. If so, given the egregiousness of Maryland’s procedures, this would be the most important university win of any post-Dear Colleague letter case.

Likely Narrow University Victory in First Circuit Due Process Case

In a frustrating oral argument this morning before the First Circuit, Judges Bruce Selya and William Kayatta suggested that a UMass undergraduate had forfeited his right to bring a due process claim because he hadn’t protested at the time that the university had denied him the right to cross-examination. The two judges seemed more open to the student James Haidak’s other due process claim (that UMass had issued an interim suspension in a haphazard fashion), but it wasn’t clear if, given the facts of the case, the finding would mean anything. The third panelist, retired Justice David Souter, expressed some concerns with the district court’s decision not to allow the student’s Title IX claim to proceed to a jury, but it’s unclear whether the other two panelists shared his misgivings.

The likely result—a university victory on very narrow grounds.

The case is a factually odd one. The allegation involved dating violence in a tumultuous relationship. The accuser’s parents filed the initial allegation against Haidak, and UMass gave him an interim suspension without any sort of hearing. The school also issued a no-contact order between Haidak and his girlfriend—which both of them proceeded to violate numerous times. A hearing was delayed for several months, during which time (in response to pressure from the Obama administration) UMass changed its procedures to eliminate cross-examination in Title IX cases. Haidak was left with a process by which he could suggest questions to be asked of his girlfriend—most of which the university “investigator” didn’t ask (unknown to Haidak). The school found him guilty of dating violence and violating the no-contact order, and expelled him.

He sued; Judge Michael Ponsor sided with the university at summary judgment. The opinion dripped with contempt for Haidak; Ponsor made clear his disgust with the student for violating the no-contact order. (Of course, the girlfriend had violated the order as well, and was never charged by UMass.) Haidak also claimed that the incident of dating violence that was the underlying reason for his interim suspension was actually initiated by his girlfriend, a line of questioning he couldn’t offer at the hearing because UMass didn’t allow cross-examination. UMass did concede that the girlfriend’s story differed from the more alarming one offered by her parents, but this fact didn’t bother Judge Ponsor.

It did bother the panel. Both Judge Kayatta and Judge Selya expressed concern that UMass’ decision to give Haidak an interim suspension without giving him a chance to meaningfully defend himself violated his due process rights. This section of the oral argument was highlighted by an exchange between Judge Kayatta and UMass’ lawyer Denise Burton, where Burton (incredibly) said she didn’t know if UMass still would have been justified in expelling Haidak for violating the no-contact order even if the school had concluded that the order was based on a false allegation.

Both Kayatta and Selya seemed deeply skeptical (to put it mildly) of Burton’s argument. But Selya suggested later on that perhaps Haidak had no remedy, because he was expelled anyway after the hearing.

Justice Souter, meanwhile, was the only member of the panel to raise the Title IX count, and asked questions suggesting a broader view of an accused student’s Title IX claim than that offered by many judges who have approached the issue.

His questions, however, were phrased in such a way that it was impossible to determine whether he was just playing Devil’s advocate or whether he thought Ponsor had gotten the case wrong in district court. And neither Kayatta nor Selya (who were both part of a BC panel that dismissed the student’s Title IX count while siding with the student on other matters) engaged on the issue.

On the key issue in the case, however, Souter was silent and both Selya and Kayatta made clear their sympathies lay with UMass. Even though Haidak had no chance to cross-examine his accuser, and even though UMass had delayed convening a hearing in his case until the procedures changed to deny him a chance for cross-examination, Selya and Kayatta strongly implied that he was out of luck, because this undergraduate student, forced by the university process to defend himself, hadn’t raised a procedural objection at the time.

This, of course, is an argument for allowing accused students meaningful legal representation throughout the Title IX process. But since UMass didn’t do that (the student, UMass’ lawyer conceded, was only entitled to “potted-plant” legal representation in the hearing), it seems unfair to expect an undergraduate to make timely procedural objections.

The full oral argument is here. The First Circuit tends not to be speedy with decisions, so it’s possible we’ll see nothing from this case until the end of the year or early 2020.