Cautious optimism for expelled Oberlin College male student after appellate argument

Cautious optimism for expelled Oberlin College male student after appellate argument

John Doe v. Oberlin College is a case we have covered for almost two years. While it doesn’t get the media coverage of Gibson’s Bakery v. Oberlin College, it’s every bit as important, addressing alleged systemic abuses at Oberlin College in its treatment of male students.

By way of background, we first covered the case on December 26, 2017, Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate:

A male student who was expelled from campus in October 2016 for alleged sexual assault has filed a federal lawsuit against Oberlin. Though the lawsuit was filed in June 2017, it has not received any publicity. Yet the lawsuit contains allegations which, if proven, reflect that Oberlin’s system for adjudicating sexual assault accusations was fundamentally biased against males, at least during the 2015-2016 academic year….

The details of the sexual encounter and recriminations are all too familiar to anyone who has read the complaints being filed around the country regarding higher education sexual assault adjudications.

According to the Complaint, the encounter started as consensual by everyone’s account, including sexual intercourse. There were text messages and other evidence that at least at the start, both parties were on board. At some point, the female asked for intercourse to stop because she was experiencing physical discomfort from the intercourse, and the male stopped. At that point the male requested that the female perform oral sex on him, and she did.

The alleged violation of the campus code took place only on the issue of consent to oral sex, not the preceding intercourse and other sexual relations. Just prior performing oral sex, the female made a comment that she was “not sober.” That comment would become the central issue as to whether the female was “incapacitated” (and therefore unable to give true consent) under the Oberlin code and whether the male reasonably should have known that.

As in so many cases, the allegation of sexual assault was not made immediately, but only after a period of time. There was no claim of use of force during the female’s initial interactions with friends or interview with an investigator. At the hearing that would change, and she alleged the use of force to push her head down during oral sex.

You can read the pleadings and motion to dismiss at the link above. What was most interesting was the allegation that 100% of the cases that went through the process to adjudication, all or almost all of them involving accusations against males, resulted in conviction:

11. But on another level, that decision unfortunately comes as no surprise at all: Jane Roe was a female student accusing a male student of sexual assault at Oberlin College. And Oberlin’s regime for investigating and adjudicating claims of sexual misconduct is rife with gender bias. In the words of Meredith Raimondo, one of the Policy’s architects and its chief implementer, it was designed to be a “survivor-centered process” and is inspired by her views on feminism. Its goal, she has said, is to eliminate “rape culture,” an undefined term whose chief characteristic at Oberlin—as evidenced by faculty resource guides, Oberlin’s Counseling Center, student opinion leaders, and at least some of its Title IX adjudicators—is an unwavering commitment to treat sexual assault allegations as true, even in the face of serious doubts.

12. And that is exactly what Oberlin has done: According to its Spring 2016 Campus Climate Report, it had found every single sexual assault respondent who went through its formal resolution process during that academic year responsible on at least one charge.

13. Jane Roe levied her allegations against John Doe the same semester that report came out. It was all but inevitable that John Doe would be found responsible. The fact that the panel could find John Doe responsible only by flaunting its clear definition of “incapacitation” and ignoring the obvious problems with Jane Roe’s credibility proves that other forces were at work. John Doe was found responsible, and expelled, because the same gender bias that motivated the drafting of the Policy and its implementation on campus demanded it.

After the motion to dismiss was filed, John Doe filed an Amended Complaint, which the court allowed to be filed.

Case Dismissed

Ultimately, the amendment was futile, as the court dismissed the case, as we reported on April 2, 2019, Male student lawsuit against Oberlin College dismissed despite possibly flawed sexual assault disciplinary decision:

It took almost a year, but the Court finally ruled on the motion to dismiss the Amended Complaint.

In the Order (pdf.)(full embed at bottom of post), the Court ruled that plaintiff, though having cast doubt on the correctness of the disciplinary panel ruling against him, had failed to allege facts showing such error was due to discrimination against men. Accordingly, the Court dismissed the federal claims with prejudice, but dismissed related state law claims (which might not require such a causal connection to sex discrimination) without prejudice. That means that John Doe can bring the state law claims in state court (and of course, can appeal the dismissal to the 6th Circuit Court of Appeals.).

Here is the key portion of the Order on the correctness of the disciplinary panel ruling:

With respect to the first prong of the erroneous outcome standard, the court, drawing all reasonable inferences in favor of Plaintiff, finds that his accusations create “some articulable doubt” as to the accuracy of the hearing board’s decision in the present case. Here, Plaintiff points to the length of the investigation in this case (120 days) as being excessive and without explanation. Oberlin’s Policy states that investigations typically will be completed within twenty days. Plaintiff further argues that third-party testimony from Jane’s friends present that night indicates that there were no outward signs of Jane’s intoxication that a stranger could recognize. Plaintiff also alleges there are inconsistencies between Jane’s Investigation Testimony and her Hearing Testimony regarding the circumstances surrounding the oral sex. In the investigative interview, Jane stated that Plaintiff asked her to perform oral sex. However, in the hearing, Jane testified that Plaintiff grabbed her neck and forced her to perform oral sex. Plaintiff maintains that the hearing board based its entire decision on a single piece of evidence to support their conclusion that Jane was incapacitated, her statement that “I am not sober.” In addition, Plaintiff also alleges that the hearing board improperly applied its own definition of incapacitation outlined in the Policy. The only issue here is whether Plaintiff has met his pleading burden, and these allegations indicate that he has. See Doe v. Univ., of Cincinnati, No. 1:16CV987, 2018 WL1521631, at *5 (S.D. Ohio Mar. 28, 2018) (finding that the plaintiff pleaded sufficient facts to cast articulable doubt where he was not allowed to confront and question Roe through the panel which would have undoubtedly aided the truth-seeking process and reduced the likelihood of an erroneous deprivation); Miami Univ., 882 F.3d at 592 (same where the plaintiff alleged unresolved inconsistency in Roe’s statement, unexplained discrepancy in hearing panel’s finding of fact, and alleged use of an erroneous definition of consent).

The Court, however, found insufficient allegations of a causal connection to sex discrimination:

With respect to the second prong of the erroneous outcome standard, the court finds that Plaintiff has not alleged facts showing “a ‘particularized…causal connection between the flawed outcome and gender bias.’” Miami Univ., 882 F. 3d at 593 (citing Cummins,  62 Fed. App’x. at 452 (quoting Yusuf, 35 F.3d at 715.)) The Sixth Circuit explains that, “[s]uch allegations might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Miami Univ., 882 F.3d at 594 (quoting Yusuf, 35 F.3d at 715). In an effort to show this particularized causal connection, Plaintiff asserts: (1) gender bias pervades the entire adjudication process, illustrated in part by comments made by Dr. Raimondo, (2) Campus Climate Statistics for 2015–2016 show gender bias, and (3) the Dear Colleague Letter and the OCR Investigation created an environment ripe for such gender bias. The court finds that, taken together, these assertions are insufficient to meet Plaintiff’s pleading burden.

Appeal Filed

In August 2019, we noted that the appeal had been filed and briefed, The Other Oberlin College Case – Expelled “John Doe” Appeal Involving 100 Percent Conviction Rate. with links to the briefs:

• John Doe v. Oberlin College – 6th Cir – John Doe Brief
• John Doe v. Oberlin College – 6th Cir – Oberlin College Brief
• John Doe v. Oberlin College – 6th Cir – John Doe Reply Brief

Here are excerpts from John Doe’s Summary of Argument (you may recognize a name in there):

The district court fundamentally erred in concluding that Mr. Doe failed adequately to plead that his expulsion by Oberlin was motivated by gender bias. Mr. Doe pled evidence of gender bias from multiple significant sources, evidence that exceeds what this Court found sufficient in its two published decisions on the matter, Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), and Doe v. Baum.

He pled that Oberlin, at the very time it was drafting and first implementing the Policy, was under nationwide pressure from OCR to zealously prosecute claims of sexual assault brought by women against men or risk the loss of its federal funding, RE 21-2, Amended Complaint, PageID #484-85, ¶ 49-50, evidence that the Miami University court found probative of gender bias, 882 F.3d at 594. Then in November of 2015, just four months before Mr. Doe would be charged, OCR targeted that pressure directly upon Oberlin, initiating a “systemic investigation” into Oberlin’s Title IX enforcement regime that remained open throughout the entirety of Mr. Doe’s disciplinary proceeding, RE 21-2, Amended Complaint, PageID #483-84, ¶ 48, evidence even more probative of gender bias given its intensity. See Baum, 903 F.3d at 586; Doe v. Cummins, 662 Fed. Appx. 437, 453 (6th Cir. 2016) (targeted pressure from OCR investigation more probative of gender bias than nationwide pressure). And in that same time period, from August 2015 through February 2016, Oberlin convicted 100% of the respondents it sent through its formal resolution process, the vast majority of whom, if not all, were men, RE 21-2, Amended Complaint, PageID #486-87, ¶¶ 54-55,—further powerful evidence of gender bias. Miami Univ., 882 F.3d at 593.

But most importantly of all, less than a year before she charged Mr. Doe, Meredith Raimondo, who spearheaded the drafting of Oberlin’s Sexual Misconduct Policy, oversaw its implementation, and trained Mr. Doe’s hearing panelists on how to evaluate consent and incapacitation, openly stated that she “come[s] to this work as a feminist committed to survivor-centered processes,” and furthermore that gender considerations affect the way she thinks about consent in “grey area” cases like Mr. Doe’s that do not involve the most extreme kinds of allegations. RE 21-2, Amended Complaint, PageID #488, ¶ 59. Mr. Doe’s expulsion, when there was no evidence showing how he could have known that Ms. Roe was incapacitated, is exactly the result one would expect when a hearing panel is trained to evaluate consent and incapacitation informed by gender bias.

Taken together, that is powerful evidence of gender bias, and it is evidence the district court largely failed to address….

Here are excerpts from Oberlin College’s Summary of Argument:

After an extensive investigation and a full hearing, Oberlin found that Mr. Doe sexually assaulted Ms. Roe in the early morning hours of February 28, 2016, in violation of Oberlin’s Policy. Oberlin expelled Mr. Doe due to his misconduct. Mr. Doe has sought to improperly litigate the findings against him by alleging that the outcome of his disciplinary proceedings was caused by a bias against his male gender, in violation of Title IX, 20 U.S.C. § 1681. As a general rule, “‘courts should refrain from second-guessing the disciplinary decisions made by school administrators.’” Doe v. College of Wooster, 243 F.Supp.3d 875, 885 (N.D. Ohio 2017)(quoting Davis v. Monroe Cnty. BOE, 526 U.S. 629, 648 (1999)). As this Court well knows, colleges and universities have come under fire for both failing to respond to allegations of sexual assault aggressively enough and, as in this lawsuit, for enforcing their own policies consistent with federal mandates. Accordingly, courts, including this one, recognize that “school-disciplinary committees are entitled to a presumption of impartiality, absent a showing of actual bias.” Doe v. Cummins, 662 Fed.Appx. 437, 449 (6th Cir. 2016) (citation omitted).

In this case, Mr. Doe claims that his disciplinary process, based in part on the findings of fact by an outside legal expert who served as a neutral investigator, and the decision by the hearing panel to find him responsible for violating Oberlin’s Policy, was clearly erroneous. The District Court correctly determined that Mr. Doe’s claims of innocence were insufficient to survive Oberlin’s motion to dismiss when Mr. Doe failed to allege any facts that plausibly demonstrated Oberlin found him responsible due to gender bias.

Mr. Doe was found responsible for engaging in sexual contact when it should have been clear that the other person was too intoxicated to consent. The issue is not whether Mr. Doe can point to evidence that supports his belief that, under the preponderance of the evidence standard, he did not violate the Policy. The central issue in regard to Mr. Doe’s Title IX claim is whether he has plead sufficient allegations to raise a plausible inference that Oberlin’s decision to find him responsible for violating its Policy resulted in a flawed outcome due to gender bias.

Recent Oral Argument in 6th Circuit

The case was recently argued. You can listen to the full audio here.

Professor K.C. Johnson, who has been a pioneer in reporting on campus due process abuse since the days of the Duke Lacrosse case, has an analysis of how the oral argument with. With the obvious caveat that oral argument comments by judges do not necessarily predict the outcome, Prof. Johnson finds some reason for John Doe to be optimistic, Trump-Nominated Judge Likely Swing Vote on Oberlin Case:

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

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

Read Prof. Johnson’s full analysis, he breaks down the argument with numerous clips from the audio. Here’s just a sample (go to Prof. Johnson’s website for the audio clips:

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

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

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

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

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

* * *

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

On Twitter, Prof. Johnson boiled down his impressions of the oral argument:

Fascinating argument before a divided panel, w/ impressive Qs from Judge Kethledge. Victory for the accused student seems more likely than an Oberlin win ….

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