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.
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:
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.
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.
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.
A frustrating oral argument today before a Ninth Circuit panel in Seattle seemed to foretell a victory by the University of Oregon in the first due process/Title IX lawsuit to reach the Ninth Circuit. (The circuit previously had ruled in favor of the University of California, but solely on grounds that the accused student had to sue through state courts first.)
The case involved three basketball players at the University of Oregon. The case (summarized here by the Oregonian) was an ugly one; it certainly seemed possible that the accused students both were guilty and received an unfair process. The district court, in a ruling from Judge Michael McShane, issued one of the most aggressively pro-university opinions of any of the nearly 300 federal lawsuits filed by accused students since the Dear Colleague letter. The students then appealed.
They did not get a particularly favorable draw: two Clinton nominees (Susan Graber, Margaret McKeown) and one Obama nominee (Morgan Christen). While the panel did not seem particularly enthusiastic about Oregon’s case, there was nothing in the oral argument to suggest that a victory for the accused students was likely.
Judge McKeown got things started by saying she thought that Second Circuit’s Columbia decision was simply “wrong.” Given that the students’ brief had relied fairly heavily on Columbia, this wasn’t a good start.
The high point for the accused students came in this exchange between Judge Christen and Oregon’s general counsel; Judge Christen (correctly) seemed unpersuaded by Oregon’s claim that because the students were just accused of violating the disciplinary code, there really wasn’t much reputational harm.
The argument overall, however, mostly occurred at a frustrating level. Oregon’s general counsel appeared intent on obscuring the issues at play (at one point, Judge Christen rebuked him for bringing material in from outside the record). The complaint in the case wasn’t particularly clear, vexing all three judges at various points in the argument. And the accused student’s lawyer devoted more than 20 percent of his oral argument time to a Title IX selective enforcement claim for which he could not produce any specific evidence from his complaint. It was a very curious tactical deicsion, especially given the due process concerns regarding a lack of cross-examination in the case.
If the university seems likely to prevail, the manner in which it does so could be quite significant. Because of the peculiar facts of this case, the court could choose to render an exceptionally narrow decision. (The students in effect entered into a plea bargain with Oregon, choosing not to face a full-blown hearing; and because they withdrew from school, the university appears never to have kicked any of them out of classes, though the record was unclear on one of them.) A ruling that students who don’t go through the full process forfeit their right to a due process claim would have little impact beyond the facts of this case. Similarly, it’s possible the accused students could lose their erroneous outcome Title IX claim on the first prong, since it was unclear whether they actually presented much evidence the university got the decision wrong.
On the other hand, there are enough troubling facts in this case–a rush-to-judgment statement from the UO president, a guilt-presuming campus atmosphere, very one-sided campus procedures–that a comprehensive ruling in Oregon’s favor could foreclose a wide range of lawsuits from accused students in the Ninth Circuit.
So it’s probably not surprising that the new proposed Title IX regulations generated exclusively negative commentary from congressional Democrats.
Eleven Democratic senators (including Senator-elect Jacky Rosen) criticized the proposed regulations, often in inflammatory terms, while rarely providing specifics.
For instance, Dianne Feinstein: the longtime California senator claimed (without saying how) the proposed regulations would “silence victims,” and “drown out the voices of victims in favor of their accusers.” (It appears that she meant to end her statement with: “the students they accuse.”)
Ron Wyden claimed that that regulations would be “stifling” rather than “empowering survivors.” Jeanne Shaheen claimed that the proposed regulations would discourage survivors of sexual assault from reporting the crimes against them, but did not explain why.
Patty Murray (unsurprisingly) was opposed. So too were similarly ardent foes of any type of fair treatment for accused students, Bob Casey and Kirsten Gillibrand.
Bob Menendez’s hostility to fairer treatment for accused students was particularly notable given how the New Jersey senator benefited from the due process given to the accused in his corruption trial.
Other Senate critics of the regulations included Maggie Hassan, Jacky Rosen, Mark Warner, and Richard Blumenthal.
Not a single Senate Democrat mentioned the importance of due process, the presumption of innocence, or the need to ensure that both sides had full access to evidence in Title IX adjudications. Only one—Wyden—pointed to cross-examination, in the context of suggesting the procedure was a bad thing.
In the House, likely Speaker Nancy Pelosi issued an extraordinary statement, attacking the regulations as a document that “denies survivors due process.” Does the incoming Speaker believe that accusers (but not the accused) have a due process right not to be cross-examined? To ensure that the student they accused can’t see all the evidence? All training material? That it’s a violation of an accuser’s due process rights to presume the accused student innocent? She didn’t say. Pelosi promised to “fight this cruel agenda.”
Rep. Raul Grijalva, among the most liberal members of the House, asserted that the due process provisions were “making it easier to protect the perpetrators.”
Rep. Jackie Speier—who previously seemed to challenge the need for Title IX tribunals to recognize the presumption of innocence—deemed herself “disgusted,” and labeled DeVos “a shill for Trump Admin’s slash & burn agenda to gut protections for sexual violence survivors.” She did not explain which provisions of the regulations made her feel this way.
According to Rep. Rosa DeLauro (D-Connecticut), the draft regulations showed how “Betsy DeVos is on the side of those accused rather than the victims.” She did not explain how she reached this conclusion.
When Rep. Joe Kennedy (D-Massachusetts) falsely asserted the regulations would have the accused cross-examining the accuser, he received a correction from the Education Department. Rather than acknowledge his error, he offered a stat implying that the number of campus sexual assaults had risen since the implementation of the Obama policies.
To Rep. Ann Kuster (D-New Hampshire), regulations allowing cross-examination and full access to evidence would “make campuses less safe for all students.” She did not explain how. A handful of other Democratic House members also criticized the proposed regulations.
Two statements, however, stood out. The first came from incoming Education and Labor Committee chair Bobby Scott (D-Virginia). He strongly attacked the proposed regulations. But he did also say, “Institutions must secure due process for the accused.” As far as I know, this throwaway clause represented the first remarks from a Democratic legislator since DeVos took office to even purport to favor due process for accused students.
Then there was public criticism from a Republican officeholder—New Hampshire governor Chris Sununu. In his letter, Sununu built his argument for setting aside the new regulations in part because “we know that 1 in 4 women and 1 in 10 men will be sexually assaulted in college.” It’s not clear how Sununu knows this—even the Obama administration had never offered a 1-in-4 stat for female undergraduates or a 1-in-10 stat for male undergraduates. (Does Sununu believe that the Obama-era policies were so ineffective as to make sexual assault more frequent in the last three years?) In the event, if Sununu really believes that thousands of college students annually are victims of violent crime in low-crime New Hampshire, you’d think he’d have boosted the state police presence on college campuses.
The latest campus due process case to reach an appellate court came this morning, as Judges Christopher Droney (Obama), Pierre Leval (Clinton) and John Walker (H.W. Bush) heard an appeal from an accused student at Colgate University. The panel was less active than any of the recent Sixth, Seventh, or Ninth Circuit panels, making it somewhat harder to read.
Nonetheless, the discussion left little grounds for optimism that the accused student would prevail. That said, even a victory for the school could be a rather narrow one, given the facts of the case.
In contrast to the recent arguments involving cases at the University of Michigan (CA6) and Purdue University (CA7), the plaintiff in this case was highly unappealing—he faced allegations of sexual assault from three students, involving events that spanned several months. Colgate also elected not to file a motion to dismiss, and prevailed instead at summary judgment, in a fairly lengthy opinion from Judge Lawrence Kahn, a Clinton nominee.
There were, however, credible allegations of unfair procedures—in this case a failure to provide specific notice and (most seriously) Colgate’s decision to have the same panel hear all three allegations, which all but ensured a degree of bias by (at the very least) the time the third case was heard.
Judge Droney seemed concerned with the obvious unfairness of Colgate’s system, twice pressing the university’s lawyer, Laura Harshbarger, on the point.
Harshbarger never really explained why this system was fair (since it pretty clearly wasn’t), other than to repeat her point that, whether fair or not, the procedures weren’t gender-biased.
The only other comment from the bench, from Judge Leval, noted that Harshbarger seemed to be repeating information already in her papers “to tell us how bad John Doe was.” That approach, however, might have been smart tactically, since courts in this area have proven highly reluctant to side with accused students who seem, on the facts before them, to be guilty.
All told, fewer than 10 percent of Harshbarger’s presentation was consumed with questions or comments from the panel.
The panel seemed much more skeptical, on three grounds, of the accused student’s case, presented by Phil Byler. Judge Walker jumped in almost immediately to note that the accused student couldn’t make a due process claim (since Colgate is a private school), and that he seemed chiefly to be using the federal courts to challenge the factual basis of Colgate’s decision.
Judge Droney, meanwhile, pressed Byler on whether the claims of insufficient notice corresponded with the actual case file.
Droney also seemed sympathetic with Judge Kahn’s decision to exclude the expert report of Professor Aya Gruber, noting that most of her comments corresponded to the general issue of gender bias in Title IX investigations rather than the specifics of Colgate’s conduct.
While the court seems likely (although not certain) to side with Colgate, it could do so in differing ways. A fact-specific decision—holding, perhaps, that the accused student was provided with enough notice (without claiming that no notice would be acceptable) and noting that Gruber’s report fell short because it discussed the case in general rather than specific terms—would be a setback for the accused student, but would (as occurred with the Fifth Circuit’s Houston decision) not have much of an effect outside of this case. On the other hand, if the court returned a broad opinion that clawed back some of its holding regarding the relationship between possible gender bias and outside pressure in Title IX cases, the ruling could have major consequences down the road.
Today’s oral argument in the Purdue case suggested a likely outcome of a victory for the accused student. Two of the judges—Amy Comey Barrett and Diane Sykes—were noticeably more skeptical of Purdue’s argument than that offered by the accused student, who was represented by Phil Byler. (The third judge, Amy St. Eve, was a less active participant, but she too seemed skeptical of Purdue.) That said, Sykes also brought up specifics of the complaint—the very high due process pleading standard for college students in the 7th Circuit, the fact that the complaint didn’t allege direct governmental pressure to crack down on sexual assaults at Purdue—that might salvage a university victory. The likeliest outcome would seem to be a 2-1 victory for the accused student (and perhaps even a 3-0 victory on due process grounds), but only if Sykes and Barrett can be convinced that the student has grounds for pleading a due process claim.
The facts of the case were unusually troubling, even in the Title IX realm: the guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred.
As Judge Barrett noted, “It was a credibility contest in which you not only did not hear directly from her, you didn’t even read words that she had written.”
Purdue’s lawyer, William Kealey, conceded that the university’s system had no cross-examination, and didn’t require the accuser to testify, and didn’t even give the accused student a hearing. But, he suggested, this approach either:
(a) didn’t matter, because the accused student wasn’t able to convince the panel of his innocence. Judge St. Eve seemed dubious.
Or (b) didn’t matter, because the accused student based his case on his own credibility. Judge Sykes seemed skeptical of this line of argument.
The Purdue approach, indeed, seemed designed to celebrate unfairness. The university’s lawyer, incredibly, argued that in conducting its TIX adjudication, “Purdue has no reason to do anything except look at the evidence that the [accuser] said was inculpating of [the accused].”
Judges Barrett and Sykes went out of their way to remind Kealey that this case was at a motion to dismiss stage, and therefore the complaint’s allegations needed to be accepted as true. Judge Barrett even accused Purdue’s lawyer of misrepresenting the complaint.
Perhaps the most interesting exchange of the hearing came between Judge Barrett and the Purdue lawyer over what type of evidence is necessary to establish a plausible claim of gender bias. The accused student had touted the fact that CARE (which prepared the accuser’s statement) had posted on its website an article claiming that men, not alcohol, were responsible for sexual assault. Kealey maintained that this was acceptable because CARE had a right to free speech, and because it was only, at most, advocating for sexual assault victims. That generally has been a winning argument for schools, but Judge Barrett didn’t seem to agree:
Kealey spent several minutes at the end of his argument going back and forth with all three judges over whether the court had authority to issue injunctive relief that would wipe out the accused student’s disciplinary record, before eventually conceding that it had the authority. (Kealey took a maximalist approach to arguing throughout the session, which seemed tactically unwise.)
It’s hard to predict the outcome for his case, in part because of Judge St. Eve’s presence on the panel, and in part because the court probably could, if it wanted, cite a combination of the relevant 7th Circuit precedent (Charleston) and Judge St. Eve’s Columbia College Title IX pleading standard to dismiss the case. But Judge Barrett seemed like a clear vote for the accused student, and by the end of the hearing, Judge Sykes seemed to be leaning in that direction as well.
A decision in early 2019 seems possible (unless, of course, Judge Barrett winds up leaving the court if the Kavanaugh nomination collapses).
Draft Title IX regulations were leaked (presumably by a critic of fairer procedures) to the New York Times. The draft regulations remind that Title IX requires schools to be fair to both sides, not just the accuser; they also call for at least a circumscribed form of cross-examination. In these respects, they do nothing more than telling schools to avoid what many courts already have held out as problematic actions by colleges and universities.
The decline of Democratic support (at least among legislators) for basic fairness in campus procedures has been a troubling trend of the past two years. As with the reaction to Betsy DeVos’ decision last year to withdraw Obama-era guidance, there was no support for the new regulations among Democratic legislators. But far, far fewer legislators publicly commented to the Times story (perhaps they’re waiting for revelation of the final regulations.)
As always seems to be the case on this issue, the most extreme reaction came from Senator Kirsten Gillibrand:
Gillibrand has offered no explanation as to what happens in cases where it isn’t clear which party (if any) is a “predator” and which a “survivor.”
The new regulations also generated a negative response from Washington senator Patty Murray, who has emerged as one of the fiercest defenders of the repudiated Obama-era policies:
Murray did not explain how providing basic procedural protections for accused students is “shameful” or “appalling,” or how these procedures would make it harder for victims to seek justice.
The longest response came from Pennsylvania senator Bob Casey, who contended (without specificing how) that the new regulations would violate the Clery Act. Beyond that, he too was heavy on ad hominem attacks (the regulations would “hurt victims”) devoid of substance.
The only other Democratic senators to comment were Jeanne Shaheen and Richard Blumenthan. They too offered non-substantive criticism:
Blumenthal, like his colleagues, didn’t explain why permitting some form of cross-examination, or saying that Title IX requires fairness to both sides, could be deplorable and disgusting.
[Update, 11 October: Without recorded dissent, the Sixth Circuit denied the University of Michigan’s request for an en banc rehearing of the case.]
[Update, 7 September: As expected, in a strong ruling, the panel ruled against Michigan on due process grounds–but also did so on the Title IX count, in a more robust manner than had seemed likely after oral argument.]
The Sixth Circuit appears poised to rule again for an accused student, in a lawsuit from the University of Michigan. Despite the court’s ruling about the importance of cross-examination in Cincinnati, the University of Michigan elected to maintain its Title IX procedures, which deny to the accused student any form of cross-examination. At least two judges on the panel—Amul Thapar and Julia Gibbons—seemed deeply troubled by this approach. (The third judge, Ronald Gilman, a Clinton nominee, asked no questions of either side.) Indeed, Thapar summarized the university’s argument as requesting authority to “set up a kangaroo court.”
This case is an unusually rich one factually (it also involves state litigation by the accuser). UM uses a single-investigator model, in which one person interviews the parties and other witnesses, and then writes a report. In this instance, the investigator found the accused student not guilty. But, exercising her rights established under the Obama-era Dear Colleague letter, the accuser appealed the finding. Using the same evidence as what was before the investigator, but without hearing from any of the parties, the appeals board found the accused student guilty, alleging that the accuser was incapacitated, and expelled him. Judge David Lawson, a Clinton nominee, ruled in favor of the university, largely due to his belief that the accused student was guilty and therefore any procedural deprivations were irrelevant.
Though a factually complex case, Doe v. Baum had a procedural simplicity to it: Doe v. Cincinnati said that some form of cross-examination benefits both the university and the accused student. But Michigan set up procedures in which neither the accused student nor the ultimate university decisionmaker benefited from cross-examination. And cross-examination would have mattered in this case, because the accuser’s medical records contradicted her claim to have been incapacitated.
Most questions that went to Gordon were soft or related to the factual record. (There was a section where Judge Gibbons appeared confused by the factual premise of the argument, but that confusion was clarified by the end of the hearing.) By contrast, DeBruin faced repeated, skeptical questions from both Thapar and Gibbons. He repeatedly evaded Thapar’s questions, and repeatedly interrupted Gibbons. (Both judges rebuked him at various points in the argument.) His basic claims:
First: Michigan didn’t have to follow Cincinnati, because an earlier Sixth Circuit case (Newsome) said cross-examination wasn’t required for high school students.
Judge Thapar was part of that Cincinnati panel—indeed, during its oral argument, he quoted from Newsome to show why it wasn’t appropriate to eliminating cross-examination for students accused under Title IX. He accused DeBruin’s position of disregarding “everything courts have ever said, including the United States Supreme Court, about cross-examination.”
Second, DeBruin maintained that to the extent Michigan was required to follow Cincinnati, it did so by providing the accused student with a “hearing” (his interview by the investigator) at which he could indirectly present questions to the accuser (which might or might not be asked).
Judge Gibbons seemed flabbergasted by this point: “Making findings based on interviews is not what I think of when I think of a hearing.”
Judge Thapar likewise seemed troubled by this comment, wondering why Michigan didn’t use this process in all cases if it considered the approach so beneficial:
Third, DeBruin contended that the accused student had no meaningful due process claim, because the procedures that Michigan supplied him (which denied any cross-examination) were better than those that the Cincinnati court envisioned, and the judiciary needed to defer to university judgment on this question.
This point aroused considerable frustration from both Thapar and Gibbons. After DeBruin accused the judges of second-guessing the appeals board’s factual findings, Thapar replied: “We’re not second-guessing the evaluation; we’re second-guessing the procedures provided to the Plaintiff before you deprive him of his rights. And what our problem is: is we view the due process clause, and what happens all the time—and we talked about it in Cincinnati, in Doe v. Cincinnati, where we said how fundamental cross-examination is when credibility is at issue. And what you’re saying is, “’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”
A couple minutes later, Gibbons added, “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”
Gibbons previously had noted that—given the facts of the case—it was absurd to suggest that the accused student’s rights were protected in the appeals process:
DeBruin’s time at the podium ended with one final question from Thapar, who noted that if the panel decided that this was a case that came down to the credibility of the accused and accuser, “you lose.” DeBruin’s response: “I agree.”
It seems likely, therefore, that Michigan will lose, though Gilman’s silence, and Gibbons’ previous authorship of the due process-unfriendly Cummins decisions—perhaps holds open the slimmest of chances for the school.