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.

A full audio of the proceedings is here.

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 7^th 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 7^th 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.

Deborah Gordon argued for the accused student; the University of Michigan’s lawyer was David DeBruin.

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.

As we await a ruling in the first of (at least) three campus due process appeals to go before California appellate courts in the second half of 2018, a second case—involving a guilty finding from Claremont McKenna College—was argued before the Second District Court of Appeal. The oral argument here was not as lopsided as in the UCSB case, but at least two of the justices—Victoria Chaney and Helen Bendix—appeared sympathetic to the accused student’s claim that the process used by CMC was fundamentally unfair.

Neither of the two students in this case came across as particularly appealing; both also had considerable inconsistencies in their portrayal of events. (Counsel for both sides conceded the latter point during oral argument.) The accuser filed her sexual assault claim months after the alleged incident; her version of events contradicted what she had told not only friends at the time but also medical officials; and the story she told CMC officials evolved over time. The accused student boasted of the sexual encounter to friends in a particularly vulgar fashion. He too had inconsistencies in his story, although to a far lesser extent than the accuser.

Under CMC procedures, both parties spoke to an investigator, who in turn produced a report for the hearing panel—of which the investigator was one of three members. A hearing then occurred, at which the accused student testified as to his innocence; the accuser did not appear. The panel found him guilty, and a superior court did not disturb the judgment. The argument before the appeals court focused on three procedural issues—one related to notice, the other two to the adequacy of CMC’s procedures (which were oddly unfair, even for Title IX tribunals, given the dual role of the investigator).

The notice issue was a nuanced one: the accused student conceded that he eventually was told of the central charge against him—that at the tail end of a sexual encounter that was clearly consensual, the accuser claimed that she had withdrawn consent. Initially, however, CMC’s investigator only told him that he was alleged to have violated the school’s sexual misconduct policy, but not in any specific manner. In his first interview, then, he maintained that he had consent for intercourse (which—he didn’t realize—was not the issue the accuser was raising) and did not recall the specific words the accuser had used to indicate consent at the tail end of the incident—because, again, he hadn’t understood this was the focus of the case. The CMC panel would use his initial failure to be clear on the wording of his accuser’s consent at the tail end of his encounter as a reason to doubt his credibility.

His argument, therefore, was that if he had received notice of the actual allegations in his first interview, he would have responded to them clearly, and the CMC panel would have had no reason to have doubted his credibility. This lack of notice was particularly important because it was the only one of the five points raised by the CMC panel that clearly called into question the accused student’s credibility.

The justices did not show much interest in this aspect of the argument—which was unfortunate, since the conduct of the CMC investigator resembled that of some Title IX officials from the thread exposed by Laura Kipnis, withholding meaningful notice from the accused student in the hopes of trapping him into revealing his “guilt.”

Two of the justices, however, were much more engaged on the second procedural point: that in a he-said/she-said case, it was unfair for the CMC panel to have deemed the accuser the more credible of the parties even though she never testified before the panel.

Justice Bendix noted that the basic issue was a “fair process,” and CMC’s insistence that courts should simply defer to educational institutions didn’t hold water.

(That she closed the exchange by referencing the recent Michigan TRO—which was decided after briefing in the case, but which mirrored, to some degree, the issues at Claremont McKenna—was striking.)

Justice Chaney, meanwhile, pointed out that the accuser’s presence in the room was meaningful for determining her credibility, at least for the two panelists who had never met her. “The concern that I have,” she noted, “is the lack of the ability to absorb sensory input by the two judges who were not present during the interviews.”

Only Justice Laurie Zelon seemed untroubled by the accuser’s absence at the hearing, oddly analogizing the case to a domestic violence trial, where critical information might be supplied by the police officer or a counselor.

Later in the argument, Justice Chaney rejected this analogy; Justice Bendix likewise seemed disinterested in it.

CMC’s lawyer, Appala Chopra, pursued an unusual strategy of not meaningfully responding to the justices’ questions about the significance of the accuser’s non-presence at the hearing. She instead chose to focus on issues that the panel repeatedly told her were not in dispute, or on the assertion that Claremont McKenna had a right to develop its own procedures, subject only to evolving restrictions under the common law, as long as it provided some form of notice and a chance to be heard. But Chopra eventually retreated to a claim that CMC’s process provided a fair chance for the decisionmaker to have evaluated the credibility of the accuser because at least one of the panelists (the investigator) had met with the accuser individually.

That line of argument did not seem to persuade any of the justices. Here was Justice Chaney:

Justice Bendix then added that the Sixth Circuit’s Cincinnati decision (about which she spoke sympathetically throughout the hearing) showed a similar concern. When Chopra tried to argue that due process issues were irrelevant to CMC’s position as a private college, Bendix pointedly observed that cases she had cited in her own brief argued otherwise:

It was on this point that Chopra managed to (if only briefly) lose Justice Zelon, who noted that even in domestic violence cases, the police officer or crisis counselor who provided the testimony did not also serve as a juror in the case. Yet CMC allowed a double-dipping role for the investigator, which put the other two panelists, Zelon reasoned, in a “subordinate position.” (Justice Bendix chimed in that the other two panelists were “potted plants.”)

Based on this oral argument, it seems more likely than not that the accused student will prevail, with an opinion focusing on the fundamentally unfair impact of the accuser’s absence from the hearing. But even Justice Bendix, who seemed the most sympathetic of the panelists to the accused students, commented on the need for colleges to balance the rights of the accused with a system that will encourage accusers to report offenses. So there will remain some uncertainty until the opinion is rendered.

Audio of the full oral argument in the case is at this link.

Former Yale basketball captain Jack Montague’s lawyer has filed his motion opposing summary judgment in his lawsuit against Yale. I’ve written extensively about the Montague lawsuit and won’t repeat my previous points. Instead, the post below will summarize some of the key items from attorney Max Stern’s lengthy brief and hundreds of pages of supplementary filings. You can read the brief here; the statement of facts is here.

Before looking through the filings, two reminders about the case:

• The critical procedural problem with the case from Yale’s perspective: the accuser didn’t want to file a complaint against Montague. Yale’s Title IX bureaucrats did. But Yale’s procedures appeared to preclude the Title IX office filing a complaint under the circumstances of this case. So how Yale would manipulate events to get a complaint against Montague was key.
• Montague had a previous disciplinary offense—as a freshman—that was presented as another instance of sexual misconduct, even though the actual facts of the case (shoving an empty pizza plate at the chest of a senior female student amidst a drunken argument) would hardly seem like the kind of case handled by Title IX tribunals, and were wholly different from this case. Nonetheless, that previous incident was used to encourage the accuser to participate in the process—and to justify the decision to expel Montague.

New Revelations

This case has been extensively litigated, but the Montague filings nonetheless contain several pieces of previously unrevealed information.

First: David Post, chair of the Yale Title IX tribunal (the UWC), was involved in the decision to encourage the accuser to participate in the disciplinary process—making himself available as a “standby” in a previously scheduled meeting between the accuser and a Title IX official, and then chatting with the accuser.

Second: Post suggested to the accuser that the university could adopt the procedures it ultimately did—the Title IX office filing the complaint, the accuser proceeding as a participating witness—for her “comfort.” Yet nothing in Yale’s then-existing procedures justified a “comfort” rationale, which appears to have been made up on the fly to maneuver the accuser into filing a formal complaint against Montague.

Third: Despite his involvement in the filing of the complaint, Post then participated in the Montague hearing as a member of the panel—without telling Montague of his role in bringing the charges in the first place.

Fourth: Even though Yale’s Title IX office—not the accuser—was the “complainant” in the case, the accuser was given the procedural rights associated with complainants.

Fifth: The accuser initially said that she wanted only for Montague to receive “sensitivity training.” A Yale Title IX official (at the very least) told her that Montague previously had received training, and the office operated under the belief that it wouldn’t be appropriate for him to receive more. Yet the official admitted that she knew of no Yale policy that precluded two sets of training.

Sixth: Title IX officials knew that Montague was basketball captain at their meeting to brainstorm on how to ensure that a formal complaint was filed in the case; and a representative of Yale’s general counsel’s office participated in this meeting.

Seventh: Yale’s hired investigator, for reasons that are unknown, did not seek electronic evidence (text messages and the like) from the accuser or witnesses—and, indeed, testified that she allowed the accuser only to present texts that “she wanted me to see.”

Eighth: Even though Montague and the accuser had a preexisting sexual relationship, Yale’s investigator didn’t ask for their text history, and deemed pre-incident texts not “relevant” to her charge.

Ninth: While Yale Deputy Provost Stephanie Spangler contends that the Title IX office has no “view” on what process a campus accuser should follow, testimony from one of the Title IX officials involved in Montague’s case makes clear that for him, the office did have a preference—formal charges.

Brief

Stern’s brief provides a troubling summary of the key meeting of Title IX administrators to push the accuser into filing a formal complaint against Montague.

And, critically, the new filings hint at a reason why the university was so eager to bring charges against Montague—Title IX officials learned of a possible incident by this high-profile athlete on the same day that Yale’s president, hoping to deflect campus, media, and activist criticism, promised a “redoubling of efforts” to eradicate sex crime from campus.

The brief provides an intriguing citation of the recent Boston College decision, urging the court to adopt the First Circuit’s holding that universities must apply fundamental fairness in their Title IX adjudication processes.

And the brief also urges the court to respect the Second Circuit’s Columbia decision—an approach that one other district court, in the Colgate case, refused to do. Given the myriad accusers’ rights protests at Yale over the past several years, if Yale doesn’t meet the Columbia standard, no school does.

Montague’s First Disciplinary Action

The filings are very effective on the unfair way in which Yale officials used Montague’s first disciplinary infraction as an excuse to expel him.

The brief notes that though the previous infraction was used to justify not only the punishment but the finding of guilt, Montague never received a chance to address it in the hearing.

Yale’s excuse for this approach—that the university respected Montague’s privacy rights—is comical.

The brief also supplies new evidence that Montague tried to bring to administrators’ attention the misuse of the first case in his appeals process, but the information never appears to have reached the appellate officer.

Finally, one exhibit provides contemporaneous emails from Yale administrators showing that the episode had nothing in common with the complaint that led to Montague’s expulsion.

The Accuser’s Convenient Change of Story

The brief notes—to a greater extent than done previously—how the accuser’s story was hardly consistent at the time.

But significant sections of the filing also address the accuser’s convenient (for Yale) shift: that despite what the investigator said the accuser told her (that she participated in the formal process because a Yale Title IX official had told her about the earlier allegations against Montague—which would have violated both FERPA and Yale procedures), she was, in fact, never told such a thing. In her deposition, however, she admits that she was told he received “training”—which a Yale Title IX officer admitted shouldn’t have been done, and which she clearly interpreted as showing an earlier claim against Montague. So what was reported as the key reason why the accuser participated in the process in the investigator’s report is now, according to Yale, something that never happened at all.

The brief extensively discusses why the accuser’s sudden change of heart raises problems.

The accuser’s deposition also makes clear that Yale officials encouraged her to file a formal complaint.

Cleanup

The filings tried to address two areas that Yale’s motion for summary judgment stressed: Montague’s credibility problems, and the admission by Montague’s expert that Yale’s procedures conformed to federal guidelines and would have justified expulsion if the accuser’s story was true.

On the first point: the brief acknowledges that aspects of Montague’s statements to Yale weren’t consistent, but offers an explanation—that Yale never provided specific notice of the charges he faced, leading him to initially describe one sexual encounter with the accuser when the allegations involved another.

On the second: the brief stresses that the expert concluded that the investigation was biased, and therefore any finding of guilt had to be flawed.

The first of these areas seems more convincing than the second.

Yale Procedures

Two remarkable items from this filing speak to a one-sidedness that a university such as Yale would not tolerate in any academic context.

First: not only does Yale refuse to record or provide a transcript of its Title IX hearings, it also has a “practice” of requiring the panelists to destroy all their hearing notes. A cynical person might suggest they fear this material could be used in litigation.

Second: more than two years after this lawsuit was filed, Yale has still refused to turn over the “training” material given to Title IX panelists. Stuart and I wrote a piece on why this material is so important. The refusal is all the more remarkable given that Yale’s initial statements on the case highlighted the importance of this “training” material to ensuring a fair outcome.

Additionally, this item from Stephanie Spangler shows how—when push comes to shove—even campus administrators don’t really believe the inflated figures they present about the number of sexual assaults on campus. Imagine any other context in which a high-ranking university official would say that 33 percent of female students being victims of violent crime didn’t constitute an “emergency.”

The Basketball Team

One important episode from the Montague case about which we still know little is the possibility of administrative pressure on the other members of the basketball team. After the expulsion, team members wore Montague’s number on their warmup shirts. This was, in its own way, a powerful, silent protest regarding the university’s mistreatment of Montague. But while in many contexts administrators might welcome their students standing up for due process, in this case strong campus opposition emerged, and the team quickly backed down. It remains unclear whether and how they were pressured to do so.

It’s clear from the deposition snippets contained as exhibits that members of the Yale administration knew of the players’ act. This one snippet, from Stephanie Spangler about a victims’ rights “chalk-in” following word of Montague’s expulsion, suggests a degree of disdain for the team among Yale’s Title IX bureaucracy:

Final Thoughts

These filings amplify rather than modify the basic narrative of the case: at a time when campus activists and media sympathizers were strongly criticizing the Yale administration as not tough enough on campus sex crimes, the university’s Title IX office learned that an allegation against Montague might exist. He presented a perfect target—as one of the highest-profile male students on campus., a guilty finding against him would demonstrate the university’s resolve and presumably soothe the criticism. But the accuser didn’t want to file a complaint. So university officials finessed their rules both to persuade the accuser to participate in the process and to bring charges against Montague at all. Once the complaint was filed, Montague had no chance—just as a guilty finding would demonstrate that the Title IX office, contrary to criticism, was serious about addressing the purported wave of violent crime on campus, a not-guilty finding risked intensifying that criticism.

Some of the New England cases—BC, Amherst, Johnson & Wales, Brandeis—feature overwhelming evidence of either innocence or massive procedural irregularities or (Amherst) both. This is not such a case. The facts associated with the allegation are ambiguous, and Yale’s procedural misconduct (focused on manipulating procedures to bring a case against a star male athlete to temper campus criticism) is subtler than most. Success for Montague will require a judge closely engaged with the issues raised in the lawsuit. To date, the 85-year-old Judge Alfred Covello has not been that jurist; his reasoning in the preliminary injunction denial was quite perfunctory, and his repeated description of the accuser as a “victim” suggested a prejudging of the outcome.

Montague has requested an oral argument.

[Update, 10-9: As expected, the three-judge panel unanimously ruled for the accused student.]

Last week, a three-judge California appellate panel heard the first of at least five appeals in campus due process cases. (A sixth appeal, against the University of California-Santa Barbara, settled on the eve of its scheduled oral argument.) This case also originated from UCSB; at one point, the hearing panel chair, Justice Arthur Gilbert, acknowledged that “we’ve really tipped our hand” in revealing the panel’s “serious, serious questions” about the due process given to the accused student.

Even in the annals of bizarre campus due process cases, this one was strange. In 2016, the accuser—who had consumed alcohol despite taking an anti-depressant, Vibryd, that discouraged alcohol use—claimed that she was violently sexually assaulted at a party. Her allegation was of a brutal rape, in which the attacker also photographed her during the assault. Yet two other students—including her best friend—were seated three feet away from her during the alleged assault, and told the hearing panel they saw nothing. A critical piece of evidence—the name of the anti-depressant—was provided to the accused student shortly before the hearing (the night before, according to his lawyer; a few days before, according to the university).

UCSB didn’t follow the criminal rules of evidence when it allowed testimony from a security officer describing contents of a sexual assault report that was mostly redacted for the accused student, but it did follow the rules of evidence in denying testimony from the accused student’s mother, an engineer who had contacted the drug company to find out the anti-depressant’s side effects when mixed with alcohol—a list that included hallucinations. The university counsel, present at the hearing, interjected: “You do not have the expertise to lay the foundation for this type of evidence. We appreciate you feel you wish you had more time on the SART [sexual assault] exam but you have (sic) the opportunity to look at it prior to the hearing, but you can’t backdoor this.” The accused student’s lawyer, by contrast, could not speak at the hearing.

The accused student was found guilty, largely on grounds of the emotional trauma of the accuser, who dropped out of school and went to counseling. after the alleged assault. The hearing panel said that, given the layout of the dorm room, it was possible for a violent assault to have occurred without the two other students, three feet away, noticing it. The panel dismissed results of a lie detector test, which the accused student passed, on grounds that he was drunk on the night of the incident and therefore his memory was unreliable. An appeal—to UCSB Margaret Klawunn, a figure well-known from various lawsuits against Brown dating from her time there—was denied.

The accused student sued but lost in superior court. Judge Donna Geck conceded that “the better practice may have been to find a way to let Doe see the SART report or exclude any reference to a small portion of the findings in the report given out of context,” but denied that the procedural error harmed the accused student. She noted that the hearing panel refused to hear testimony about Vibryd’s side effects, but likewise dismissed this concern as non-prejudicial, since “Viibryd and alcohol [do not] always result in hallucinations, night terrors, or nightmares.” Geck concluded that the hearing panel had reason to disbelieve the friend’s exculpatory testimony, since the friend said only that the bed was “often,” not “always,” in her peripheral vision. Finally, Geck acknowledged that there was “no evidence” to substantiate the hearing panel’s conclusion that the accused student’s medical condition (a form of palsy) “may have even exacerbated the physical sensations Complainant described and physical evidence described in relation to the incident.” But she argued that this evidence-free finding was not “crucial” to the evidence for guilt.

Oral argument came last Wednesday before Justices Arthur Gilbert, Steven Perren, and Kenneth Yegan, each of whom seemed dubious (to varying degrees) about UCSB’s handling of the case.

Justice Perren was the most skeptical of the university’s actions. He noted that, “I read this record, and I was stunned at a university procedure which purports to be fair and equitable puts a kid [the accused was a freshman] who’s attempting to get a college education in the position of, essentially, a lawyer in a major sexual assault case.”

UCSB’s lawyer pushed back on this point, claiming that Perren had minimized the trauma of the victim. This point brought a strong rejoinder from Perren, who noted that “your argument assumes its conclusion”—that the accuser was, in fact, a victim.

Much of the hearing focused on what would happen if the court sided with the accused student. Justice Arthur Gilbert raised this early on, wondering what would happen if the court just decided UCSB denied due process—and what occurred if the court found there was no substantial evidence of guilt at all.

Justice Yegan, meanwhile, focused on the appearance of unfairness—noting that the university was, in effect, investigating and judging itself, instead of choosing to have an outside adjudicator. He also worried about the unfairness of a process in which the accused student’s lawyer could not speak, but the university’s counsel could.

The university’s lawyer, Jonathan Miller, defended the procedures by repeatedly claiming that mandates from Title IX and OCR required the university to adjudicate sexual assault claims. But nothing from OCR requires (as happened here) the accused student to have a silent lawyer or not to be able to gather and present expert testimony.

At the end of the hearing, Gilbert cautioned that just because the panel asked all tough questions of the university, and none of the accused student’s lawyer, an outcome for the accused student wasn’t guaranteed. But it seemed more likely than not.

The full audio of the hearing is below.

 

Since the Dear Colleague letter confirmed tilted Title IX adjudication systems, more than 200 accused students have sued their schools. They’ve won more than they have lost—but, thanks to favorable precedents, universities have won their fair share of cases as well (51 in the federal courts).

In many of those decisions, the judges have expressed at least a degree of concern that they can’t act despite the unfairness of the university’s system. Then, however, there’s a judge like Paula Xinis. Xinis, an Obama nominee, last week dismissed a lawsuit filed by an accused student from the University of Maryland.

Scott Greenfield already has eviscerated Xinis’ opinion—which joins that of Judge Ronnie Abrams in the Vassar lawsuit as the most enthusiastic in favor of a college or university. But I wanted to draw attention to one, remarkable passage, with emphasis added:

Doe attempts to support his “pressure” theory by asserting that after the Dear Colleague letter (1) “virtually all cases” of sexual misconduct at UMCP have involved “female complainants against male respondents;” (2) “communications between UMCP officials” reflect “UMCP’s intent to favor female students alleging sexual assault over male students accused;” and (3) “Defendants[’] deliberate indifference to the gender bias and hostile environment exhibited towards the Plaintiff . . . was for the purpose of demonstrating to [OCR] and the public that UMCP was aggressively disciplining male students accused of sexual misconduct.”

Deeply troubling, however, is Doe’s utter lack of a good faith basis to make such assertions about [the University of Maryland].

The only outrage Judge Xinis was able to muster in her opinion came not for a student whose complaint indicated he might have been wrongfully found guilty, but for the Maryland’s Title IX process that oversaw his case.

What might have prompted the accused student’s lawyer to suggest pressure produced a biased investigation in his case?

Perhaps it was bad faith. Or perhaps it was that:

• Maryland’s Title IX office refused to provide him with the accuser’s initial statement (to the campus police), which denied him an opportunity to impeach his accuser.
• At his initial meeting with Maryland’s Title IX office, he was provided with no summary of Maryland’s procedures or the specifics of the complaint against him.
• The accused student claimed that his interview with the Title IX investigator inaccurately recorded his statements (there was no way to prove the claim, since the investigator doesn’t record his interviews).
• Multiple exculpatory witnesses filed affidavits asserting that the investigator (despite his subsequent testimony) had never attempted to contact them.
• Maryland procedures prevented the accused student from asking questions of either the accuser or the investigator.

It’s true that the accused student presented no evidence that outside pressure caused Maryland to adopt such unfair procedures. But the assertion of pressure leading to unfairness was hardly implausible—and, in any case, the alternative (which Xinis implicitly accepted) is that Maryland created unfair procedures all on its own, which would raise due process concerns.

In her opinion, Xinis faulted the accused student for claiming—without evidence—that “’virtually all’ complaints at UMCP are lodged by female victims.” But as another Obama-nominated judge (in a case from IUPUI) noted, “Although [the accused student’s] pleading may lack the contours of more particularized facts, the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [the accused student], notably refusing, at all times, to share such information with [the accused student] or his attorneys. In this regard, the Defendants cannot have it both ways, restricting access to the facts and then arguing that [the accused student’s] pleading must be dismissed for failure to identify more particularized facts. Instead, whether the facts alleged sufficiently ultimately support a claim for intentional gender discrimination under Title IX is a question for a later stage in this litigation, after fair and robust discovery by both sides.”

Nor was the suggestion a bad-faith one—after all, the only national data that appears to exist on this matter (from United Educators) indicates that 99 percent of accused students are male.

Nor, Xinis continued, did the student’s suggestions that Maryland consistently favored accusers indicate gender bias, because accusers can be both male and female. (We have no way of knowing, of course, whether there have been any male accusers in Maryland’s proceedings.) It’s true, Xinis conceded, that Maryland’s Title IX coordinator, in a 2015 article, employed “hypothetical scenarios” about campus sexual assault that referenced only “female sexual misconduct victims and male perpetrators.” But even though the statement undermined Xinis’ claims about the gender-neutral conception of Maryland’s policies, she held it couldn’t possibly indicate a gender bias—for reasons she declined to explain.

Doing so, alas, might have undermined the real victims in this case, according to Judge Xinis—Maryland’s Title IX office.

As more and more schools (currently 72 since the Dear Colleague letter, and counting) have found themselves on the losing end of due process decisions, a handful of institutions have resisted in a troubling manner. Rather than acknowledge that court decisions showed the need to reform their unfair procedures, schools instead have maneuvered to neuter an accused student’s efforts to go to court.

The trend started a few months ago at Penn State. After a temporary restraining order blocked the university from suspending a student, the university abruptly announced (without informing the court) that it was withdrawing the student’s guilty finding—but would re-try him, subject to eliminating some (but not all) of the procedural defects in the investigation identified by the court. The accused student’s lawyer filed a contempt motion; the day before the hearing on the motion, Penn State withdrew plans for a new disciplinary hearing for the student.

Then came Texas, where the university president overturned a not guilty finding after the accuser—whose father was a major donor to the school—had filed an appeal. The accused student sued; the judge in the case scheduled a hearing, at which the president was scheduled to testify. Less than a week before the hearing, Texas announced that the president had cancelled his guilty finding, and would submit the accuser’s appeal to another, unnamed Texas administrator. But the court called the university’s bluff, and refused to cancel the hearing. That morning, just before the president was to take the stand, the two sides settled, and the university permanently withdrew the guilty finding.

A common theme to these two cases: Penn State or Texas procedures did not allow a new hearing after the university had adjudicated the case and dismissed an internal appeal. In short, both schools were trying to invent new procedures on the fly to remove procedurally flawed decisions from a court’s jurisdiction.

At least Penn State and Texas had the good sense to ultimately back down. Not so, at least as of now, Pomona College in California. The basics of the Pomona case were depressingly familiar. (You can read the complaint here.) Two students met in spring 2015, and flirted; both had been drinking. (The accuser also had smoked some marijuana.) The two students went back to the accused student’s dorm room.

As the two students became more intimate, the accuser later would say that she had not desired to go forward. She was experiencing, she later claimed, a PTSD-related reaction caused by other alleged sexual assaults she had experienced. Nonetheless, this claimed issue was never communicated to the accused student. So the two students (according to the college investigator’s summary of an interview with the accuser) “ended up in his bed, but she was unsure of how they got there.” The accuser further admitted voluntarily kissing the accused student (who I’ll call JD), while both were shirtless, in his bed.

At that point, the two stories diverged. The accuser claimed that the additional sexual contact was without consent; JD claimed that the accuser consented unequivocally by physically moving his hand down to her vagina. Both sides agreed that to the extent the accuser was experiencing mental turmoil from PTSD, she never communicated that to JD, and JD (who was a college student, not a trained mental health professional) was unaware of it.

The accuser filed a Title IX complaint with Pomona nine months after the incident. (She appears never to have gone to the police.) Under Pomona’s policies, the Title IX coordinator hired an investigator who interviewed the two parties and some witnesses, and produced a report. That document then went to an adjudicator hired by Pomona, who presided over what Pomona procedures call a “hearing.” The accused student was allowed to present questions—five days before the hearing—that the hired adjudicator might (or might not) ask of the accuser.

In JD’s case, the investigator, Li Fellers, spoke to him, his roommate, the accuser, and a couple of the accuser’s friends who said that she told them about her discomfort with the incident shortly after it occurred.

The accused student seemed to have strong evidence. JD passed a lie detector test (which Pomona later would refuse to consider). On the critical issue at play in the case, whether she had denied consent to sexual touching, the accuser gave fundamentally inconsistent statements—claiming in one discussion with the investigator that she had frozen during the encounter and had said nothing to JD, claiming in another that she had clearly said no.

Moreover, Fellers’ own investigation raised questions about the accuser’s credibility. The accuser alleged that JD had stalked her, claiming that at two social events on campus, JD—around 15 feet away from her at one occasion, around 20 feet away from her on another—sought to intimidate her. But the accuser, by her own admission, couldn’t identify someone from beyond 10 feet away, due to poor eyesight, and therefore had no idea whether JD was even in the room. Fellers further reported that a “majority” of the accuser’s own witnesses had “contradicted her accounts” of the harassment claim.

Nonetheless, this concrete demonstration of the accuser’s dubious credibility did not prevent Fellers from producing a report suggesting she had believed the accuser’s claim about sexual assault. During the subsequent Pomona hearing, Fellers admitted that around half of her business came from Title IX investigations—suggesting a strong incentive to stay on the good side of the Title IX coordinators who hire her.

Before the hearing commenced, JD’s lawyer (who wasn’t allowed to represent him at the hearing himself) asked for copies of the witness statements to Fellers—only to discover that Pomona policy doesn’t have investigators retain this information. (It was “typically standard that we don’t record” witness interviews, Fellers would later tell the Pomona hearing. “Clients [the universities] don’t want us to record.” It’s not hard to imagine why.) Instead, Pomona turned over Fellers’ interview notes—but with dozens of redactions, even though Pomona policy provided no grounds for withholding this type of material. Fellers later said that the redactions came from the college counsel’s office.

The hearing was a farce—neither the accuser nor her witnesses appeared. In a passage that recalled the hearing in the 6^th Circuit’s University of Cincinnati case, the adjudicator, Joseph Costa, noted that procedures existed for some indirect questioning of the accuser, but an absent witness could answer no questions. “If she was here,” said he, “you know, it would be a different story.”

Costa added, “One of the big issues for me in this matter is . . . there’s a lot of factual disputes, and a lot of what is here goes to certain factual disputes.” Yet because the accuser chose not to appear for the hearing, Costa never was able to explore concerns he had with her side of the story. Instead, he heard from a dean to whom the accuser had given her initial allegation—and denied multiple questions JD wanted asked, including questions about the accuser’s medical history, which seemed relevant to the case given her unverified claim of PTSD.

In the end, Costa largely accepted the presentation from Fellers’ report, and, absent cross-examination of the accuser (but after a hearing in which he did question JD at length), Costa found JD guilty. He so concluded despite finding that JD “was earnest in his statements at the hearing that he believed he had consent.” When Pomona denied the appeal, the college’s process was over. So JD went to state court.

That the case was assigned to Judge Mary Strobel seemed ominous—Strobel authored a troubling summer 2017 opinion upholding the infamous Occidental guilty finding. (That was the case where the accuser texted a friend—before going to the accused student’s dorm room—saying she was going to have sex, but Occidental found him guilty anyway.) But the Pomona procedures were too much even for Judge Strobel, who noted that the lack of any opportunity for cross-examination raised “serious fairness questions,” and was so “prejudicial” to JD that the college denied him a “fair hearing.” She set aside Pomona’s guilty finding. You can read her opinion here.

Pomona, of course, has the right to appeal an adverse ruling. Instead, in mid-November Title IX coordinator Sue McCarthy informed JD that Pomona was going to re-try him, using a different adjudicator but the exact same evidence (including the Fellers report) from the original case, and under the same procedures that had produced the decision Judge Strobel set aside.

The university did not inform Judge Strobel of this rather startling decision, which appears to violate existing Pomona procedures. Even more remarkably, McCarthy provided no indication that this second “hearing” (which, again, has no authorization under the college’s policies) would include cross-examination of the accuser, the defect identified in Judge Strobel’s ruling.

Indeed, McCarthy placed an extra burden on JD, demanding that he produce a 20-page report responding to Fellers’ original investigative report, including questions for the accuser if she decided to show up for this new hearing.

It’s not hard to see what Pomona is doing here. Just as Penn State and Texas attempted, the message: wrongly accused students can sue, and might even win in court—but the victory will be meaningless, because the school will simply re-do the process, without altered procedures.

This afternoon, campus due process returned to the 6^th Circuit, for the fourth oral argument on the issue (and the second in the last 10 days) since issuance of the Dear Colleague letter. The outcome of the case is hard to predict, because two of the three judges on the panel said very little during the hearing. But it seems highly likely that the third judge—Amul Thapar, a Trump nominee, who at one point in the hearing said that the district judge who dismissed the complaint had “erred”—will vote in favor of the accused student.

The facts of the case, which originated from Denison University (here’s the complaint), were unusually strong for the accused student. Even the district judge who dismissed the complaint, Michael Watson (a Bush II nominee) conceded that “one could plausibly conclude that [the accuser] was not incapacitated the night on which she and [the accused student] engaged in sexual activity and that she consented to that activity.” And even Denison conceded that its initial handling of the case was procedurally improper—although the school found the accused student guilty a second time.

The accuser’s original claim was that another Denison student—nicknamed “Man Bun”—had given her a date rape drug at a February 2015 fraternity party. (The record is silent on whether Man Bun was ever charged, much less disciplined, and Denison’s lawyer conceded that she didn’t know his fate.) But the accused student didn’t even attend the party. He texted the accuser that evening, she responded favorably, and she voluntarily came to his room. The two had sex. The allegation against the accused student came two months later—after the accuser publicly claimed Man Bun had drugged her, and after Man Bun (allegedly) harassed her in response. And it came despite text messages showing the accuser had voluntarily come to the accused student’s room, and contemporaneous witnesses who said that she wasn’t incapacitated, as she subsequently claimed.

Judge Watson found no plausible evidence of gender bias, and dismissed the Title IX claim.

This was an unusual oral argument because virtually all the questioning came from Judge Thapar. The only other panel member present, Judge Eugene Siler (a Bush I nominee), asked only three questions, two of which were generic (he wanted each lawyer to identify their strongest case). The third panelist, Judge Helene White (a Clinton nominee) appeared by phone, and asked only one question—favorable to Denison.

Both this case and last week’s Miami case provided the opportunity for the 6^th Circuit to adopt the 2^nd Circuit’s Columbia argument for Title IX pleading standard. The Miami panel demonstrated no interest in this topic, and nearly all the discussion focused on the specific facts of the case and questions of procedural due process. The Denison panel—or, at least Judge Thapar—seemed more interested. In questions to the accused student’s lawyer, Eric Rosenberg, he expressed strong skepticism that evidence existed to sustain either a hostile environment or selective enforcement Title IX claim against Denison, and made clear that the only claim he considered potentially viable was one based on erroneous outcome.

Denison’s lawyer, Natalie McLaughlin, got off to a difficult start and never really recovered. She opened by trying to argue how difficult it is for colleges to adjudicate sexual assault complaints, and claimed they’re sued by both sides. Judge Thapar wasn’t interested, and noted that however difficult the process, colleges can’t discriminate. He also repeatedly noted that at this stage of the process, the court is supposed to construe facts in favor of the plaintiff.

 

It was in this context that Thapar expressed his belief that the district court “erred”—clearly not a good sign for the university.

 

The heart of the oral argument revolved around an off-the-record statement by university housing official Kristan Hausman, the chair of the Denison disciplinary panel, that her fellow panelists needed to weigh the “future of 1000 girls” as they adjudicated the case.

Judge Thapar pressed McLaughlin on how that statement—allegedly made before Hausman found the accused student guilty—couldn’t indicate bias. He repeatedly wondered whether dismissal would be appropriate if, in a case involving a student of color, a disciplinary panelist had told her colleagues that they needed to weigh “the future of 1000 whites” as they adjudicated.

For instance, what if the accused student were a Black Lives Matter activist?

 

Or an Asian-American?

 

McLaughlin initially tried to parry the questions by noting that the particulars of sexual assault meant that the disciplinary committee could appropriately consider such matters, and worry about how finding the accused student not responsible would threaten the community. Judge Thapar was incredulous: “How can that be?,” he wondered.

 

And when McLaughlin attempted to move on, Thapar jumped back in, to point out that such an argument seemed to all but admit Denison was OK with going after accused males.

 

At that point, McLaughlin tried a new argument, suggesting that even if Hausman were biased, other members of the disciplinary panel weren’t. Thapar wasn’t buying it—and, critically, it seemed as if Judge Siler (in his only substantive comment of the day) wasn’t, either.

 

Judge White asked only one question, a seeming effort to rationalize the Hausman statement. McLaughlin eagerly responded. She was a bit more hesitant in answering Judge Siler’s generic question, conceding that perhaps the Columbia case was relevant to the outcome.

 

Based solely on the oral arguments, the likeliest outcome here is a 2-1 victory for the accused student, stressing that the district court made improper inferences in dismissing the case, though Judge Siler’s general reticence makes him a little difficult to read.