[Update, 12-14-2022: The panel, 3-0, reversed the district court’s ruling on the breach of contract count.]

The First Circuit has had four accused student appeals in 2021. The Harvard case, argued in early February, was a tough panel to read and still hasn’t yielded an opinion. The Dartmouth case, with a student whose guilt seemed clear, was submitted on the briefs and surely will yield a university victory. The panel in the Brown case seemed highly likely to affirm the district court’s grant of summary judgment to Brown—with the possible (albeit unlikely) exception of the student’s intentional infliction of emotional distress claim.

Today, the fourth case—involving a student from Stonehill College—went before a panel of Judges Howard (W. Bush), Lipez (Clinton), and Gelpi (Biden). The First Circuit is probably the most hostile circuit to accused student lawsuits, and this case featured day-after texts from the accused student that raised doubts about his claims of innocence. But the panel seemed surprisingly open to the accused student’s appeal—perhaps due to the aggressiveness of the district court’s opinion.

The basics: In fall 2017, two Stonehill students had a short-term sexual relationship. Both parties conceded that their first three sexual encounters were consensual; the female claimed the fourth (a digital penetration incident) was non-consensual. The next day, the female student messaged the male claiming she hadn’t consented; he eventually responded, “Please forgive me for being a drunken idiot. I’d never want to hurt you,” and “I’m so really sorry I know I fucked up, I totally misread the situation. What can I do to make it right?” The accuser then filed a Title IX complaint.

Stonehill used a modified single-investigator system (with two investigators rather than one), in which the accused student had no opportunity for a hearing or cross-examination. In this case, the student maintained that his texts were apologies for making the accuser feel uncomfortable, not admissions of guilt; the investigators disagreed. Bolstering the accuser’s credibility in their eyes was an alleged morning-after conversation between the accuser and another student (Witness 2) in which she said about the incident, “It wasn’t ok.” That alleged conversation appeared in the Stonehill Title IX finding—but the investigators never shared it with Doe. His lawyer told the First Circuit even now that he doesn’t know if the statement came from Roe, claiming what she told Witness 2, or from an interview of Witness 2 by the investigators.

At the district court, Judge Leo Sorokin (an Obama nominee) sided with Stonehill in one of the most aggressively pro-university rulings we’ve seen in this area. He unequivocally rejected the student’s linkage of Title IX and a right to cross-examination (“the Court declines to interpret Title IX to require categorically a live hearing with cross-examination in all disciplinary proceedings involving claims of sexual misconduct”). He dismissed the Title IX count by claiming that bias against accused students isn’t gender bias and in any case the accused student was guilty. And he adopted a very limited view of contractual rights despite Stonehill not only promising a fair process but doing so in unusually strong language.

Two items from Sorokin’s motion-to-dismiss opinion gave a sense of his willingness to make inferences in Stonehill’s favor. Doe’s complaint explicitly pled that the day-after texts were perhaps awkward attempts to smooth things over after an uncomfortable incident, not an admission of guilt. Judge Sorokin described this section of the complaint as Doe alleging that he “lied in writing about the events in question after Roe leveled her accusation.” Sorokin, meanwhile, conceded Stonehill’s policy technically required it to share with Doe the Witness 2 conversation, but deemed this failure a “minor, non-prejudicial error[]” allowed by the policy, and described the evidence as only “cumulative.”

Doe drew—by First Circuit standards—a decent panel, in that he avoided Judges Lynch (Clinton) and Barron (Obama), who seem strongly hostile to accused students. All three panel members seemed more sympathetic to Doe than to Stonehill, with the key issue in the oral argument whether Sorokin’s opinion inappropriately accepted Stonehill’s version of the facts.

For the most part, questions of Doe’s lawyer, Timothy Woodcock (who was impressive throughout the oral argument), were requests for more information or opportunities for him to bolster his case.

Here, for instance, was Judge Lipez on the day-after texts:

And on whether the district court essentially treated the decision as a summary judgment rather than a motion to dismiss.

The only tough question Woodcock received came from Judge Howard, who asked why it wasn’t reasonable for the district court to determine whether or not breaches of the contract actually mattered.

Within his first minute at the podium, Stonehill’s lawyer, Christopher Iaquinto, conceded, “We acknowledge there were mistakes in the conduct of the process.” But he denied that the mistakes prejudiced Doe in any meaningful way.

The panel asked him noticeably tougher questions than Woodcock received. Judge Howard, for instance, pressed Iaquinto on whether the district court improperly made inferences in Stonehill’s favor:

And how the opinion handled Doe’s description of the morning-after texts.

Judge Lipez, meanwhile, focused on how the district court handled the Witness 2 issue.

He seemed skeptical that—at least on a motion to dismiss—the Witness 2 evidence could be described as cumulative.

Judge Gelpi’s only intervention in the oral argument raised a different issue. In what might be a bad sign for the accused student in the Harvard case, on whose panel Gelpi also served, he told Iaquinto that he was familiar with Massachusetts caselaw and First Circuit opinion regarding breach of contract and basic fairness, in a question that implied some sympathy with the college’s limited conception of these rights. But, he noted, Stonehill’s policy (which deemed thoroughness and fairness “paramount” in its adjudication of Title IX allegations) seemed to go beyond how previous cases had defined fairness.

At the end of the day, Doe isn’t a terribly sympathetic plaintiff. (The morning-after texts don’t make him look good.) It’s entirely possible that the panel was simply playing devil’s advocate or thinking out loud about what might be the appropriate limits of a court hearing a motion to dismiss. Iaquinto certainly had answers for all of the judges’ questions, and there were no sharp follow-ups from any member of the panel.

That said, on the whole, each member of the panel seemed more sympathetic to Doe than Stonehill, and—much like the Third Circuit panel in the recent Princeton oral argument—an opinion reminding district courts not to make key factual inferences in favor of universities is entirely possible.

Given the First Circuit’s traditionally glacial pace in handling accused student appeals, a decision probably shouldn’t be expected until fall 2022.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Princeton encountered trouble with the panel in three primary areas.

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

Here was Hardiman on that point:

And here was Matey:

And here was Porter:

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

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

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

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

Here was Matey’s reply:

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

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

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

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

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

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

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

Over the past six years, each U.S. Court of Appeals (outside of D.C. and the Federal Circuit) has featured at least one oral argument by an accused student in a Title IX case. The Sixth Circuit—with nine oral arguments—has led the way; there have been 35 oral arguments overall.

These arguments haven’t occurred in a vacuum. Before 2012, this had been a sleepy area of the law—two decisions from the Second Circuit, one from the Sixth, a handful of district court decisions. But the 2011 Dear Colleague letter revolutionized Title IX policy, prompting colleges to tilt their procedures in favor of accusers and producing a wave of litigation (457 federal lawsuits and counting) from accused students. The resulting body of law ultimately supported new federal regulations requiring colleges to give accused students more robust procedural protections.

Each of these cases dealt with sensitive issues—allegations of sexual assault or other forms of misconduct, often involving additional evidence (text messages, university investigative reports, student witness statements) touching on other sensitive issues in the lives of both accuser and accused. But in each of the 35 times an accused student Title IX case has gone before an Appeals Court for oral argument, courts have respected the principle of judicial openness: briefs and oral argument audio have been open to the public.

Until now. On Wednesday, the Third Circuit will hear oral argument in an appeal involving a student at Princeton University. Little distinguishes this case factually from the many other accused student lawsuits, including multiple other lawsuits against Princeton. The university found the accused student guilty after a process that denied cross-examination, amidst both campus and national pressure for more guilty findings. The student, as John Doe, sued. Briefs in the case are publicly available, with very minor redactions. The transcript of the oral argument on Princeton’s motion to dismiss is publicly available, with very minor redactions. And the district court’s opinion—taking a cramped view of how the Third Circuit’s pathbreaking University of the Sciences opinion defines what constitutes gender discrimination under Title IX and fairness under state law—is publicly available.

The student appealed. In contrast to proceedings before the district court, the student requested that his opening brief be sealed, without any accompanying redacted brief. (The Third Circuit provisionally granted the request, without explanation, subject to a final decision by the motions panel.) Princeton likewise requested its brief be sealed, without a redacted version.

It’s worth reiterating that both parties’ briefs before the district court remain publicly available, in slightly redacted form. Of the 35 accused student oral arguments before Appeals Courts, none have featured sealed briefs. (Sealed exhibits, of course, are routine in this area.) It remains unclear why the Third Circuit—if it felt additional privacy was needed beyond the John Doe designation—did not simply request minor redactions in the briefs.

Last week, Princeton went even further, filing an unopposed request that the oral argument audio and transcript be permanently sealed—and that the court’s decision be provisionally sealed. The Princeton brief maintained that the “forthcoming oral argument is likely to refer to certain information that this Court and the lower court previously determined should be kept confidential.”

This is a case, it’s worth reiterating, in which the plaintiff is John Doe, the accuser Jane Roe, student witnesses are not identified by name—and both parties’ district court briefs and the district court hearing transcript are already publicly available.

It’s certainly true that this case—like the 400-plus other federal lawsuits in this area, and the 35 appellate cases that have featured oral arguments—involves sensitive issues. But appellate arguments rarely if ever cover specific, identifying items about students. After all, as universities always maintain in these matters, federal courts ought not review the merits of the university’s decision, no matter how illogical the school’s rationale, and instead must confine themselves to analyzing whether the university’s actions might have been unfair or might have constituted gender discrimination. The fact that all 35 of the Appeals Courts to have oral arguments in this area have managed to address these matters without revealing needless private details about students involved in the Title IX process counsels strongly against Princeton’s motion.

The Third Circuit has yet to rule on the university’s motion—though it did consent (provisionally) to sealing the briefs; and given that the accused student didn’t oppose Princeton’s motion, it seems likely the oral argument audio likewise will be sealed.

Perhaps Princeton’s most troubling assertion is that “no less restrictive alternative is available” than permanently sealing the audio of the entire oral argument. This statement is, to be blunt, absurd. I’ve spent years working with the LBJ presidential recordings. There are routinely short portions of these recordings excised out (in the case of presidential tapes, with a beep) for national security or personal privacy reasons. Even if Princeton’s belief is true—that unlike the other 35 oral arguments in this area, there’s no way that oral argument in this case can occur without revealing protected private information—that problem could easily be remedied by the “less restrictive alternative” of beeping out any revealing information, rather than sealing the entire oral argument. Given that the redactions in the lower court briefs and opinion came in tiny percentages of the overall filings, it seems likely that the bulk of the oral argument—and, more critically, the questions that judges ask—would remain open.

Princeton made its request to seal the audio only after the panel—Hardiman, Porter, Matey—was revealed. Two of these judges were on the USciences panel—where the oral argument featured both Judges Porter and Matey asking detailed, impressive questions of the university’s lawyer. (I posted key excerpts from that oral argument.) A cynical person might wonder if Princeton’s last-minute desire for sealing audio relates to the possibility of avoiding embarrassment to the university.

At the end of the day, the court’s final opinion (presumably) will be made public. But recordings of the oral argument provide a helpful way both of educating the public and identifying precise concerns the judges have. In some circumstances, moreover, oral arguments seem critical to understanding the final resolution—as in the critical Doe v. Baum decision in the Title IX realm, where the university lawyer’s alienation of Judge Gibbons might explain her surprising decision to join Judge Thapar in the strongly pro-due process opinion.

In an era where federal policymakers, Congress, and the public will be debating new Title IX regulations, and as new OCR head Catherine Lhamon redeems the President’s promise to dismantle the DeVos-era regulations, it’s all the more important to prioritize the public’s right to open judicial proceedings over the potential to embarrass universities about how they have mishandled Title IX allegations. It would be distressing for the Third Circuit to move in the opposite direction.

List of accused student oral arguments before Appeals Courts

CA1 (5): BC1, BC2, UMass, Harvard, Brown

CA2 (2): Columbia, Colgate

CA3 (1): USciences

CA4 (2): UMaryland, VA State

CA5 (2): UHouston, UT-Arlington

CA6 (9): UCincinnati (2), UMichigan, Miami, Case Western Reserve, Oberlin, Denison, UKentucky, Michigan State

CA7 (3): Purdue, Columbia College-Chicago, Marian

CA8 (4): UArkansas, UMinnesota, UMissouri, Drake

CA9 (3): UOregon, Arizona State, UCLA

CA10 (2) UDenver (2)

CA11 (1): Valencia Comm. College

Wednesday afternoon, a three-judge panel consistent of Judges Consuelo Callahan (W. Bush nominee), Danielle Forrest (Trump nominee after the original nominee for the seat failed to clear the Senate), and Carol Amon (an H.W. Bush-nominated district court judge sitting by designation) heard an oral argument involving a Title IX lawsuit filed by a former student at UCLA.

Judge Callahan seemed a likely vote for Doe, and Judge Amon seemed sympathetic to UCLA. Judge Forrest was harder to read but seemed on balance to lean toward Doe. Based on her comments in oral argument, an opinion written by Judge Callahan could be very significant in this area.

The facts of this case were bad even for the era’s Title IX matters. At UCLA, an international Ph.D. student had a bad breakup with his girlfriend, who was at one point a UCLA student. She went to his office and confronted him; a fight ensued. She claimed a physical assault and he was arrested by UCLA police. The university immediately suspended him. Yet the physical evidence of any assault was non-existent, and ultimately even the UCLA panel found him not guilty of 12 of the 13 charges against him. But it did find the Ph.D. student guilty of a 13^th charge—causing the accuser to be fearful. As a result, he was suspended for two years, had to leave the Ph.D. program, and lost his student visa. The student obtained a writ of mandate from a state court in California that ended the suspension after just over a year, and UCLA didn’t re-charge him, but his academic career at UCLA was over.

The student filed a Title IX suit that the district court (in a rather desultory opinion written before the 9^th Circuit’s pathbreaking Schwake opinion) dismissed. Before the 9^th Circuit, Mark Hathaway argued for the accused student, identified only as John Doe, and Hailyn Chen presented the argument on behalf of UCLA.

For UCLA, the most damaging aspect of the argument revolved around an assertion—in, of all places, the office dealing with accused students(!)—by a university official that he had never heard of a woman making a false claim about an ex-boyfriend in the Title IX process. That seemed explicitly gender-based, Judge Forrest noted. Chen said the remark was irrelevant, for any number of reasons (the Title IX office and the accused students’ office is separate, the official who made the remark wasn’t on the disciplinary panel). Judge Callahan seemed skeptical of this remark, noting that the official got this view from the university’s own training.

Earlier in the oral argument, Judge Callahan had also expressed concerns about this remark. Calling on her own experience, she noted that she knew men who had been killed by women. And, speaking directly to UC lawyer Chen, Callahan commented that recalled days gone by when women never would be believed, but there seemed to have been a significant counter-reaction, perhaps too far in the other direction. Why couldn’t Doe argue, she wondered, that point?

Judge Callahan concluded, “Either way, men and women should be able to be evaluated on their own, and not based on some ‘gender’ assumptions.”

As a general matter, at least in oral argument, Judge Callahan showed a greater appreciation of the legal and campus environments in which Title IX adjudications operate than perhaps any judge except the Sixth Circuit’s Raymond Kethledge. She repeatedly implied that UCLA seemed to have been confronted by a claim that was non-tenable, rushed to judgment, and then perhaps searched for a way to find the accused student guilty of anything (in this case, causing fear). Chen seemed unmoved, noting that the student ultimately was able to be heard by UCLA officials. Judge Callahan was, to put it mildly, unpersuaded.

Judge Callahan also pressed the university on the purpose of a Title IX proceeding. She noted that some women do lie, and not all men are abusers. Perhaps, she continued, Doe was a jerk in how he treated his ex-girlfriend. But a Title IX adjudication isn’t supposed to determine whether a student is a jerk.

Both Judges Forrest and Amon (in a rare comment from her skeptical of UCLA’s actions) wondered about the allegation that UCLA never had found a woman guilty under these circumstances. Judge Amon inferred that this outcome might be traceable to the university’s believe-all-women approach, as reflected in the remark by the university official.

If UCLA wins, comments by Judges Forrest and Aron would show the way—both noted that while the UCLA process both seemed biased, but only in favor of accusers. The UCLA counsel jumped in and pointed for reference to the Tenth Circuit Denver I and unpublished Sixth Circuit Cummins opinion. But both of those opinions, of course, have been eroded by subsequent decisions from the relevant court. And numerous courts (the Eighth Circuit in UArkansas and Regents, the Seventh Circuit in Purdue, the Sixth Circuit in Oberlin, the Second Circuit in Menaker and Columbia, the Tenth Circuit in Denver II, and even the Ninth Circuit itself in Schwake) have held that procedural irregularities are relevant to determining gender bias. But apart from Schwake, none of those other cases were mentioned by the judges.

Perhaps the most interesting section of the oral argument—albeit not one directly related to the case—came during discussion of current Title IX regulations. UC’s lawyer conceded that the processes used in the Doe investigation would violate the current regulations—but she noted the regulations weren’t retroactive, and therefore this point was irrelevant to Doe’s case.

Judge Callahan jumped in and gave a brief history of the Obama-era Title IX debate. “There were,” she noted, “a lot of challenges to Title IX processes, and there were a lot of challenges they were sort of kangaroo courts. And they just, without any process, took serious action against students. And they’ve been changed . . . That’s what was going on back then.”

Ironically, at almost the same time Judge Callahan was raising this issue, the Senate was voting to confirm Catherine Lhamon—architect of these now-discredited policies—to return for a second stint as OCR head.

[Update, 11-20: As predicted, CA7 ruled for Marian, in a 3-0, non-precedential opinion.]

[Update, 12-18: As predicted, CA8 ruled for Missouri, in a narrow, 3-0 opinion.]

Three accused student lawsuits went before Appeals Courts in September—Marian University (Seventh Circuit), University of Missouri (Eighth Circuit), and University of Denver (Tenth Circuit). The cases varied in strength. Both the Marian and DU cases featured single investigator models with minimal procedural protections for the accused, yielding guilty findings that seemed at least open to question. The Missouri case involved a stalking rather than a sexual assault allegation—albeit one where the accused student seemed almost certainly guilty. It did, however, offer an intriguing racial discrimination claim regarding the punishment of the accused student, Jeremy Rowles, who is Black.

Marian (CA7, Sept. 16): The panel included Judges Easterbrook (Reagan nominee), Manion (Reagan), and Scudder (Trump). Marian, a private institution in Wisconsin, used training materials that seemed designed more to encourage a finding of guilt than a fair adjudication. The school used a modified version of the single investigator model (there were two investigators in the case); one of the investigators, Dean Paul Krikau, tweeted out his disbelief of Brett Kavanaugh’s denials of sexual assault shortly before he undertook the investigation here. (Like the Kavanaugh case, the allegations against the accused student came well after the fact involving an accuser who didn’t remember key surrounding details.) Krikau, moreover, appears to have prejudged the case, telling the accuser—before speaking to the accused—that “we have established very clearly that we have a [sic] sexual Misconduct” and “I would say very clear case of harassment and intimidation and stalking.”

The district court granted summary judgment to Marian, on grounds that no gender bias existed; the only question asked by Judge Easterbook—comparing Krikau’s Twitter commentary to remarks that might be made by a tough-on-crime judge at sentencing—indicated agreement with the district court.

This was, to put it mildly, a very odd comparison. Even in a bench trial, a judge doesn’t also serve as the investigator in the case, as Krikau did in the Marian case. Moreover, the hypothetical offered by Easterbrook might have differed if it involved not courtroom comments by the judge at sentencing (wholly appropriate) but instead public comments by the judge on a case with related facts about which the judge knew nothing beyond what she read in the newspaper. In that case, it would seem as if the accused party’s lawyer probably would move for a recusal.

That Easterbrook returned to the comparison twice more suggested his mind was made up. Comments from the other two judges indicated no more sympathy for the student—Manion asked factual questions about the case that would have no bearing on the decision; Scudder speculated about the need for a comparator female student, the sort of thing that the standard outlined by Judge Barrett in Purdue suggests isn’t needed.

This seems like a near-certain 3-0 win for the university.

Missouri (CA8, Sept. 22). The panel included Judges Loken (H.W. Bush nominee), Shepherd (W. Bush), and Erickson (Trump). The district court in this case ruled—at summary judgment—for Missouri, despite highly concerning statements from Mizzou Title IX officials, which suggested that at least one viewed the university’s prohibition on sexual relations between people with disparities of power applying more generally to men. Rowles also highlighted how two white students found guilty of the same offense received much lesser punishments; the district court granted summary judgment to Mizzou on that question even though the court also had denied student access to the disciplinary files in those two cases so he could make his comparison. All that said, the core problem in the case remained that Rowles appeared to be guilty, and his claim that the university’s sexual harassment code was too vague under the First Amendment was unconvincing.

Shepherd and Erickson were both on the panel in the University of Arkansas case; in oral argument there, both were deeply skeptical of the university position and made clear they were likely votes for the accused student. In this oral argument, however, Shepherd didn’t speak and Erickson’s questions were skeptical of Rowles’ claims. Loken mostly seemed cranky (to both sides), though he did ask one or two questions challenging Missouri’s position, at least on the racial discrimination claim. Erickson, however, seemed dubious even on those grounds.

Rowles’ lawyer, in rebuttal, suggested that the judge’s order came after the close of discovery, so it would have been futile to have made such a request. Like Marian, this too seems like a 3-0 win for the university.

Denver (CA10, Sept. 22). The panel included Judges Tymkovich (W. Bush nominee), Phillips (Obama), and Baldock (Reagan). The March decision in Denver Ihovered over this case: in a deeply troubling opinion, the Tenth Circuit there held that a university “railroading” an accused student didn’t violate Title IX. The opinion also took a silo-like approach, considering and then rejecting a variety of factors (statistical evidence, procedural irregularities, outside pressure) that multiple other Appeals Courts had considered relevant factors in determining possible gender discrimination—without ever taking a step back and examining the evidence as a whole.

For Judge Phillips, Denver I was the be-all and end-all of the case; in fact, he went further than Denver I to suggest that a university wrongly imposing guilt to avoid controversy and to ensure that the Title IX officials didn’t get fired—precisely the sort of thing recognized as key in the Second Circuit’s Columbia decision—doesn’t raise any inference of gender bias.

Adrienne Levy argued (very effectively) for Doe, stressing one key piece of evidence lacking in Denver I—the fact that Denver seemed to have handled the few cases against female accused students more favorably. Judge Tymkovich, however, worried whether this issue had been preserved for appeal.

That said, both Tymkovich and Judge Baldock seemed extremely concerned with the core unfairness of Denver’s system. Baldock, for instance, wondered about the implications of DU not exploring exculpatory witnesses.

And in perhaps the most interesting section of the oral argument, Tymkovich—channeling Judge Kethledge’s opinion in Oberlin—wondered whether it was possible to have a university adjudication that was “so one-sided” to be gender biased.

Given that Tymkovich also suggested that this standard might be more appropriate for the motion to dismiss, the likeliest outcome here remains a 3-0 win for Denver, given the tough precedent of Denver I. But while Phillips seems like a sure vote for the university, their questions indicated that Baldock and (less likely) Tymkovich might have a chance to view the appeal more favorably.

Oral argument in a somewhat below-the-radar appeal suggests a possible, even probable, victory for the accused student in Doe v. University of the Sciences. A Third Circuit panel of Luis Restrepo (Obama nominee), David Porter (Trump nominee), and Paul Matey (Trump nominee) seemed quite skeptical of the university’s position on the Title IX claim, and at least somewhat skeptical of the university’s breach of contract arguments. The latter makes this case of potential import—the Third Circuit will join the First Circuit as the only Appeals Courts to consider what the concept of fairness requires in a Title IX adjudication.

Another Third Circuit appeal, involving a Title IX erroneous outcome claim against St. Joe’s, was submitted on the briefs in late January. (There were no common panel members between the two appeals.) It’s not clear, obviously, which opinion will appear first—a rather important point here since the Third Circuit hasn’t issued a ruling in this area to date. The previous cases it’s handled involved tangential issues (Bucknell, William Paterson) or were settled after oral argument (Clarion).

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

He sued, and his case was assigned to Judge Juan Sánchez a W. Bush nominee. Sánchez denied a TRO and eventually dismissed the complaint in an opinion that firmly sided with the university. He rejected each of the student’s Title IX theories (gender bias in the investigation; selective enforcement because the university knew that Doe, too, was intoxicated on the night of the second incident, but didn’t investigate the accuser for possible sexual assault). Sánchez also dismissed Doe’s breach of contract claim, alleging that the university had disciplined him without providing a fair process. The court argued that “under Pennsylvania law, ‘fundamental fairness’ [which the University’s handbook promised] in the context of student disciplinary proceedings requires a student be given ‘notice of the charges and some opportunity for a hearing.’” Sánchez’s opinion never really engaged with the question of how a process without a hearing provided Doe with “some opportunity for a hearing.”

Doe appealed, focusing his appeal on two elements: selective enforcement in violation of Title IX, and breach of contract for not providing fundamental fairness in his process. Joshua Engel argued the case for Doe (his opening brief is here); Leslie Greenspan argued for the university (her brief is here). The case also attracted an amicus brief of 17 law professors, helmed by accusers’ rights activist Nancy Chi Cantalupo and Georgetown Law’s David Super, focusing entirely on the breach of contract claim. The brief, which defended the single-investigator model, is here.

A few general points on the oral argument. It occurred in the era of social distancing, and so came entirely by phone, making it occasionally disjointed. (Engel tweeted about the experience.) As a listener, a videoconference would have been much easier to follow. Second, virtually all of the questions that Engel received from Judges Restrepo and Porter (Judge Matey didn’t appear to have asked him any questions) were informational. Third, Greenspan was repeatedly challenged by all three members of the panel, with Matey asking particularly incisive questions. Finally, the amicus brief wasn’t mentioned in oral argument, around two-third of which dealt with the Title IX claim.

This exchange, in which Engel articulated his argument that a process without a hearing couldn’t meet Pennsylvania’s requirement of fairness, typified the first half of the oral argument, with Doe’s lawyer receiving almost no pushback from the panel.

Greenspan seemed to make some headway with her argument that the amended complaint misrepresented the single investigator’s report (though not in a way relevant to the selective enforcement claim). Otherwise, the panel seemed deeply skeptical about her arguments.

Judges Restrepo and Porter started things off, noting that the university had evidence that Doe and Roe were similarly intoxicated, but only investigated Doe.

This point was raised several times in the oral argument, and Greenspan kept coming back to a claim that Doe never filed a complaint, and told the single investigator that he considered the sexual encounter to be consensual. Both Matey and Porter, however, challenged her on this point. They noted that even though Doe clearly considered the encounter consensual, under the university’s (extremely broad) definition of alcohol and incapacitation, it was possible that Doe was sexually assaulted, too.

Finally, Restrepo and Porter pointed out the plain language of the university’s own policies required it to investigate if it had evidence of a possible sexual assault, even if the alleged victim didn’t file a complaint.

It’s possible, of course, that all three judges (or at least Restrepo and Porter) were playing devil’s advocate. But there was little in this oral argument to suggest a likely victory for the university on Title IX.

The path the panel would take to such an outcome, however, is less clear. As Greenspan kept pressing her claim that Roe didn’t provide a comparator to Doe under the selective enforcement theory (which dates to the Second Circuit’s Yusuf decision), Judge Matey wondered why the Third Circuit was obligated to follow Yusuf. Perhaps, he noted, the panel could be influenced by the Seventh Circuit’s Purdue opinion.

No other circuit has yet adopted the Seventh Circuit’s plaintiff-friendly standard; if the Third Circuit did so, it would be a significant development.

The panel was a bit harder to read on breach of contract/fairness—though here, again, Engel received no tough questions and Greenspan did. Fairness has been common in New England Title IX cases; the concept was also raised implicitly in important student wins against Cornell Medical School and George Washington. And a recent district court ruling in Florida denied summary judgment to Rollins College on breach of contract/fairness (in a case argued by Engel). On the other hand, the Middle District of Tennessee, in two victories for Vanderbilt, has adopted a theory that fairness simply requires a university following its own procedures (however unfair they may be), and Judge Sánchez’s district court ruling adopted a similar definition.

Greenspan attempted to push the Vanderbilt definition, but Judge Restrepo questioned the “circular” logic of a position that a university’s actions must be deemed fair because a university says it handles its cases fairly.

Then, in perhaps the argument’s most interesting section, Porter and Matey questioned whether the single-investigator model could be reconciled with a fair system. Greenspan defended the university’s policies on grounds of “efficiency,” a standard of which Matey seemed dubious. (She would later try to walk back the justification.)

There wasn’t enough back-and-forth in the breach of contract section to get a firm sense of the panel’s likely sentiments. But, as with the Title IX section of the oral argument, there was little here that suggested sympathy for the university’s position.

Given both the quality and the nature of his questioning, an opinion from Judge Matey could be particularly interesting. But both Porter and Restrepo seemed sympathetic to Doe, as well.

Restrepo ended the oral argument by promising an opinion soon.

Earlier this week, a three-judge California appellate panel heard an appeal filed by former USC kicker Matthew Boermeester—at the center of one of the most troubling cases of university procedural unfairness in the post-Dear Colleague letter era. It appears as if the appeals court will side with Boermeester, though all three justices promised openness to USC’s arguments.

The specifics of the Boermeester case are, by this point, well-known. A report reached the university—third-hand—alleging intimate partner violence by Boermeester against his girlfriend, Zoe Katz. Katz was required by the Title IX office to speak to a USC Title IX investigator—and subsequently claimed, in multiple sworn affidavits, that USC misrepresented what she said in the interview. USC immediately suspended Boermeester, and ultimately found him guilty of an offense in which the “victim” said nothing untoward happened. He received no hearing, with no right to cross-examine either the third-hand witnesses the university had or to present his own witnesses. Nor did USC give him any chance to explain during its “investigation” what the university now sees as the key evidence in the case (a grainy security video of the incident).

The process was so unfair that Secretary Betsy DeVos highlighted it in her speech announcing the rescission of the Obama-era Title IX guidance. Terming USC’s treatment of Boermeester “disturbing,” the Secretary described “the story of an athlete, his girlfriend and the failed system. The couple was described as ‘playfully roughhousing,’ but a witness thought otherwise and the incident was reported to the university’s Title IX coordinator. The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better. They dismissed the young man, her boyfriend, from the football team and expelled him from school.”

DeVos concluded her recap of the case by quoting Katz: “’When I told the truth,’ the young woman said, ‘I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.’”

Boermeester sued USC in state court in 2017 (he also has filed a federal lawsuit, which currently is stayed), but drew a superior court judge, Amy Hogue, who has consistently sided with universities in accused student lawsuits. As he appealed, however, the law in California started to change. Several decisions from the California Court of Appeals, including two involving USC, made clear that an accused student needed to have some form of cross-examination, and cast doubt on the single investigator model that USC used. USC was even more vulnerable to these rulings in the Boermeester case because the single investigator was, in effect, the judge, jury, and police in a complaint filed by the institution that paid her check.

The appeal went before a three-justice panel of Tricia Bigelow, Maria Stratton, and John Wiley. As the hearing commenced, the judges put on record that they had issued a tentative ruling (which would the subject of the oral argument) indicating an intent to side with Boermeester. The tentative ruling suggested an agreement “with recent authorities that in a case such as this one, where a student faces a potentially severe sanction from a student disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in person hearing in which he may cross-examine critical witnesses, directly or indirectly, to allow the adjudicator the ability to observe witness demeanor to decide credibility.” USC’s briefing had challenged the wave of recent precedents by suggesting that the case wasn’t about credibility, since the video was sufficient to confirm Boermeester’s guilt. But to the justices, “The surveillance video by itself is not conclusive. The picture is grainy and there is no audio.”

Representing USC, Julie Arias-Young opened her argument by claiming that the panel’s tentative ruling expanded the rights of students accused of Title IX offenses. Justice Bigelow, by far the most active of the panel members, seemed skeptical. She conceded that USC was in a “pickle” because of the wave of 2018 and 2019 decisions in favor of accused students (rulings that occurred after USC elected to deny Boemeester a hearing or any opportunity to confront his accusers). But, the justice noted, that’s the way the “cookie crumbles.”

USC offered two core arguments to try to persuade the panel to reverse its tentative ruling. First, Arias-Young claimed that the five pro-due process California appeals court decisions applied only to students accused of sexual misconduct, not intimate partner violence. No one in the panel seemed particularly persuaded by the first line of argument, although a bit later in the hearing, the justices toyed with limiting principles (which nonetheless would reverse USC’s discipline against Boermeester) in a potential ruling.

Second, Arias-Young suggested that credibility wasn’t key to the case—and, indeed, generally was not a key issues in allegations of intimate partner violence, period. Justice Bigelow seemed dubious.

The bulk of the oral argument revolved around the video, and USC’s claim that this piece of evidence justified the university’s decision to deny Boermeester a meaningful opportunity to defend himself. But the justices also had watched the video, and Justice Stratton remarked that she couldn’t deem the video decisive.

Arias-Young’s desperation to suggest that this case—where the alleged victim, it’s worth recalling, said under oath that nothing untoward happened, and that USC officials misrepresented what she told them—brought her very close to suggesting that because the “grainy” (Arias-Young’s word) video appeared to show Boemeester touching Katz’s neck, that fact and that fact alone was enough to expel him, regardless of his intent. All three justices seemed extremely skeptical of this line of argument—as, eventually, did Arias-Young, when she tried to parry hypotheticals offered by the panel by saying that they differed from the “facts of this case.”

Eventually, Arias-Young’s assertions that the university didn’t need to consider the context as long as it had a video collapsed under its own weight. Justice Bigelow asked if—as seemed to be the logical application of her argument—anytime one USC student placed his hand on another student’s neck in what might (or might not) have been a forceful manner, he’d have to be expelled. Arias-Young’s response? “I guess it would depend on what it is.” But she had spent the previous five minutes arguing exactly the opposite—that the context in such cases didn’t matter, and therefore Boermeester didn’t deserve hearing.

Arias-Young’s time at the podium concluded with a complement from Bigelow—the USC lawyer had argued a good case, but the university was in a tough position given the recognition by five state appellate courts as to what the law required when adjudicating Title IX allegations. As a result, Bigelow predicted, USC was “probably” going to lose.

That sense was reaffirmed when Boermeester’s lawyer, Mark Hathaway, had five minutes in rebuttal—and didn’t receive one question from the panel. (Hathaway had opened the oral argument by urging the court to heighten the rights of accused students facing indefinite interim suspensions, but the panel didn’t seem terribly interested in doing so.)

If the panel follows through with its tentative opinion—as, based on the oral argument, all three justices appeared inclined to do—this would be a major victory, both because of the high-profile coverage the expulsion received and because USC’s procedures are particularly egregious in this area. The decision, though, would only reverse Boermeester’s discipline. The court can’t negate the rumors and stigma that affected his reputation, or restore his senior season of eligibility, or his chance at playing in the NFL.

As Justice Bigelow stated at the hearing, Boermeester had “a bright future.” In this respect, Boermeester’s ongoing battle provides a reminder of the enduring effect that unfair Title IX tribunals can have on accused students.

Yesterday, the Ninth Circuit heard oral arguments in an appeal filed by an Arizona State University graduate student, Paul Schwake, who was found guilty of sexual misconduct by ASU—harming his post-university career as a researcher. It seems likely, though far from certain, that the university will prevail, though both parties got tough questions. The most striking aspect of the hearing was the performance of Judge Milan Smith, a Bush nominee, who repeatedly misrepresented the record to claim that Schwake had no case.

The specifics of this case were a little unusual because Schwake was a PhD student, doing research in a lab. So too was his accuser, with whom he had a brief romantic relationship. When the accuser filed her complaint, ASU (which was under an investigation from the Lhamon-era OCR for another case) imposed swift punishment, carrying about a barebones investigation that deemed Schwake responsible without (allegedly) considering his exculpatory evidence. The university also denied Schwake all access to his lab (ruining his experiments), rather than simply ensuring that he did his research when the accuser wasn’t there. Word on campus allegedly spread about his fate, harming his reputation; according to the complaint, one ASU professor, Thomas Seager, told his class that Schwake had been “convicted” and referenced specific details about the case.

Under ASU policy (and Arizona law), since the investigation had recommended expulsion, Schwake was entitled to a hearing, with significant procedural protections—protections he planned to use. Rather than give Schwake a chance to defend himself (and, perhaps expose how shoddy ASU’s investigation had been), ASU manipulated the procedures. A university administrator downgraded Schwake’s punishment so that he no longer was threatened with expulsion. He therefore also was no longer entitled to have a hearing. He asked for a chance to appeal this decision; no forum existed to hear his appeal. He then received his PhD., although he remained banned from campus.

The case went before Judge Steven Logan, an Obama nominee, who sided with ASU in a short, uninspiring opinion. Logan dismissed the due process sections of the complaint on grounds of qualified immunity, claiming that accused Arizona students have no property or liberty rights associated with continued enrollment in grad school. He dismissed the Title IX section of the complaint with scant analysis.

The appeal took a circuitous route to the Ninth Circuit. Schwake appears to have had financial problems, and parted ways from his original lawyer. Eventually, Aaron Block took the case pro bono, provided supplementary briefing, and argued very effectively. The panel included Judges Kim Wardlaw (Clinton nominee), Milan Smith (W. Bush nominee), and Patrick Bumatay (Trump nominee).

According to Judge Smith, this was an open-and-shut case—Schwake’s complaint didn’t even belong in court. Dripping with condescension in deeming Schwake “upset” with the outcome, Smith explained  that the student had entered into a settlement with ASU: in exchange for receiving his degree, he forfeited the right to any disciplinary hearing. (Smith even suggested that the non-existent settlement gave Schwake access to his lab, a false claim that seemed to bewilder even ASU’s lawyer.) Second, to the extent Schwake’s reputation was harmed, it came about because he filed the lawsuit, not due to anything that ASU did.

The only problem? Smith was wrong on both counts. No settlement existed (ASU had changed the punishment unilaterally), and Schwake’s reputational harm, as documented in his complaint, predated the filing of the lawsuit. (The idea that a student harmed by his university can be blamed for reputational damage caused by filing a lawsuit to address the harm is, in and of itself, a strange argument.)

Even when presented with the facts, however, Smith didn’t back down, announcing that Schwake should have, like Texans at the Alamo, refused the “settlement.”

Finally, in his rebuttal, Block read the section of the complaint confirming that no settlement occurred. Smith then, wildly, suggested Schwake should have refused his degree if he wanted a hearing. But even in Schwake had done so (and Smith didn’t explain how a student could refuse a degree that the university had already conferred), ASU would have been under no obligation to give him a hearing. Because Schwake’s punishment still wouldn’t have been expulsion, no hearing would have occurred.

This is a close case, and reasonable people could disagree on which side should prevail. (The amended complaint was not a model of clarity.) But Smith’s performance was an embarrassment. He spent several minutes pontificating about imagined facts that weren’t actually before him, and every exchange between the judge and lawyers on each side was a waste of time since he presumed two key facts (a settlement, and that Schwake’s reputational harm only coming from his lawsuit) that the record contradicted.

All that said, since Smith is a near-certain vote for ASU, the university will prevail if it receives the votes of either Wardlaw or Bumatay. Wardlaw, a very liberal Clinton nominee, would seem an unlikely vote for Schwake, but at least she asked fair questions of both sides, and seemed somewhat receptive on the Title IX count. (Relatively little discussion occurred on due process at the hearing.)

In this exchange, for instance, Wardlaw pressed ASU’s lawyer, Michael Goodwin, on Seager’s conduct, and what that said about the integrity of the university’s system. “There seems to be something wrong with the process,” she noted, where ”there’s some rogue professor talking about the details of [the investigation] to students in his class.”

Wardlaw also went through the complaint in some detail and highlighted what could be the strongest evidentiary points for the accused student. She likely won’t vote with him, but at least she was fair in the oral argument.

The strongest point for Schwake came in an exchange between Goodwin and Judge Bumatay, who spoke much less frequently than his two colleagues. Bumatay asked why the case wouldn’t survive a motion to dismiss if all accused males were found guilty. Goodwin responded that even if ASU did find all accused males guilty, it wouldn’t be a sign of gender discrimination. Judge Bumatay seemed skeptical.

If Schwake prevails, this fairly detailed colloquy between Judges Warclaw and Bumatay, and Goodwin would seem to explain why. Both judges seemed open to the idea that, at least at the pleading stage, the case should move forward on Title IX—though Goodwin would counter that Schwake’s gender discrimination facts were weaker than those of the Oregon students who lost in the only other Ninth Circuit accused student appeal.

The likeliest outcome? A 3-0 win for ASU. (Bumatay didn’t give an impression of an eagerness to be a lone dissenter in this case.) But there’s an outside chance of a limited 2-1 victory on Title IX for Schwake. And, either way, Judge Smith’s performance in the oral argument was deeply unfortunate.

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.

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.