Image 01 Image 03

Appeals Court Denies Oberlin College Rehearing, Expelled Male Student Discrimination Case Moves Forward

Appeals Court Denies Oberlin College Rehearing, Expelled Male Student Discrimination Case Moves Forward

Full Sixth Circuit refuses rehearing en banc in case where panel found Oberlin College’s “100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves”

You remember John Doe No. 1 v. Oberlin College, not to be confused with John Doe No. 2 v. Oberlin College.

John Doe No. 1 is the expelled male student who alleged, among other things, that the Oberlin College sexual assault hearing process was so rigged and biased that 100% of the accused students (all or almost all male) who went to hearing were found responsible.

The District Court threw out the lawsuit, but it was reinstated by a panel in the Sixth Circuit in a 2-1 opinion. We explained the background and appeals court decision in Oberlin College loses appeal in suit by expelled male student, case reinstated:

To refresh your memory, John Doe No. 1’s case involved whether a female student gave “consent” as defined by Oberlin College to what on the surface was a consensual sexual encounter, as I wrote in December 2017, Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate.

John Doe No. 1 had his case dismissed in the federal district court on legal grounds, despite the judge finding there was reason to doubt the result, as I wrote in April 2019, Male student lawsuit against Oberlin College dismissed despite possibly flawed sexual assault disciplinary decision.The appeal was argued in December 2019, Cautious optimism for expelled Oberlin College male student after appellate argument.

The 6th Circuit just issued its Opinion (pdf.), reversing the dismissal and reinstating the case. In so doing, the court excoriated Obelin College’s alleged misconduct (which the court had to accept as true at this procedural stage)….

Here, everyone agrees that Doe pled facts casting doubt on the accuracy of his proceeding’s outcome. The question, then, is whether he pled facts plausibly suggesting that outcome was caused by sex bias.

As an initial matter, Oberlin argues that, to show a “particularized causal connection” between the flawed outcome and sex bias, Doe must identify some bias unique to his own proceeding. But that argument misreads our precedents. We have never held that, to be “particularized” in this sense, the causal bias must be unique to the plaintiff’s own case. To the contrary, for example, we have held that “patterns of decision-making” in the university’s cases can show the requisite connection between outcome and sex. Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018) (emphasis added). Otherwise, a university that categorically discriminates against men or women in sexual-assault proceedings could escape liability in erroneous-outcome cases. What Doe must show here, rather, is simply that he alleged facts supporting an inference of sex bias in his particular proceeding.

For any number of reasons, we hold that he did….

* * *

Doe’s complaint also cites Oberlin’s “Spring 2016 Campus Climate Report,” which stated that—during the very academic year in which Doe’s “responsibility” was determined— “every single case” that went to a hearing panel resulted in a decision that the accused was “responsible” (i.e., guilty) on at least one charge. That statistic likewise supports Doe’s claim. See Miami Univ., 882 F.3d at 593. Oberlin responds that only 10 percent of sexual-assault complaints were resolved through a formal hearing that year. But Doe reads that same Report to mean that, in 80 percent of the cases, the complainant herself chose not to pursue the matter formally. In still other cases, the responding party had graduated or otherwise left the College. And in any event the 100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.

But Doe’s strongest evidence is perhaps the merits of the decision itself in his case.

Oberlin College then filed a Petition for Rehearing En Banc (pdf.) before the entire Sixth Circuit:

This case concerns the issue of whether a Title IX plaintiff can state a claim that a disciplinary proceeding was unlawfully biased based on gender merely by attacking the outcome of that process without alleging facts showing gender bias in his particular proceeding.

The parties do not dispute that Doe satisfied the first of his two-prong pleading requirement, which is to “cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome[.]” Baum, 903 F.3d at 585. And the majority left this prong unchanged. Slip Op. at 9-10. Before the decision in this case, the second prong was satisfied only if a plaintiff alleged facts sufficient to “demonstrate a particularized causal connection between the flawed outcome and gender bias.” Baum, at 585 (internal quotation marks and ellipses omitted). Plaintiffs had to show that bias in their proceeding caused an incorrect result.

The majority reinterpreted “particularized causal connection” to include the most general allegations—public comments made by the College’s former Title IX coordinator not in connection with any specific case, statistical evidence of the outcomes of about ten other sexual misconduct complaints, and an ongoing investigation by the Department of Education’s Office of Civil Rights (“OCR”) of the College’s Title IX processes. Slip Op. at 10 (the bias does not have to “be unique to the plaintiff’s own case”).

John Doe No. 1 opposed rehearing (pdf.):

Oberlin’s petition for rehearing seeks a second bite at the apple under the guise of en banc review. It asserts that the majority “lowered the binding pleading standard” in this Court “in two ways”: (1) by acknowledging that a “‘gravely’ erroneous” outcome can itself supply some evidence of gender bias, and (2) by adopting a causation standard that requires no evidence of bias to be sourced from the temporal confines of a plaintiff’s own proceeding. Petition for Rehearing En Banc (“Pet.”) at 4. But neither of those things lower the Court’s pleading standard; Oberlin just says so to manufacture a reason for en banc review….

Oberlin wants this Court to apply special pleading rules to Title IX cases that apply in no other antidiscrimination context. But “[t]here is no heightened pleading standard for Title IX claims.” Schwake, — F.3d —, 2020 WL 4343730, at *6. Oberlin’s special rules would shield schools from Title IX liability unless they discriminated in the most obvious ways, ways that clever people rarely do. That Oberlin might want such rules is not surprising, but they have no basis in law.

That Petition for Rehearing was just denied, without a single vote for en banc reconsideration (h/t Prof. K.C. Johnson on Twitter). The Sixth Circuit Order held (pdf.):

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court.*

No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied. Judge Gilman would grant rehearing for the reasons stated in his dissent.

*Judge Nalbandian recused himself from participation in this ruling.

This means the case goes forward, and Oberlin College will be subjected to depositions and other discovery, unless the Supreme Court takes the case or the case settles promptly.

[Photo credit: Legal Insurrection Foundation]


Donations tax deductible
to the full extent allowed by law.


A demented moron runs Oberlin. When you put demented morons in charge of anything, you pay.

    Indeed. Just look at Portland. And LA. And NYC. And Chicago. And … so on.

    JusticeDelivered in reply to | August 24, 2020 at 10:14 pm

    An affirmative demented moron. In the end she will cost Oberlin a great deal of money, and then move onto wreak further destruction elsewhere.

      notamemberofanyorganizedpolicital in reply to JusticeDelivered. | August 24, 2020 at 11:42 pm

      It’s the end of Oberlin.

      The Friendly Grizzly in reply to JusticeDelivered. | August 25, 2020 at 12:46 am

      Biden’s secretary of education.

      You imply that the Oberlin College president is responsible for Oberlin’s self-destructive behavior. It is clear to me that the insanity is coming from a conspiracy of Neo-Puritans who control the Board. They are determined to purify the world by shoving their self-righteous self-image down everyone else’s throat. Engaging in this fantasy is easy when one can use somebody else’s (i.e., Oberlin College’s) money to pay for it. Fiduciary duty? What the hell is that?

      The college president is paid $25,000 PER WEEK to compensate her for her future inconvenience when her plug is pulled. You can bet you last dollar that she is not the deus ex machina behind Oberlin’s stupid decisions — look instead to the untouchable Rasputins hiding underneath the president’s throne.

      /s/ JD Nobody, OC ’61

    I’d argue that this is 100% the fault of the lawyers they have.

    There’s a name for it, but I can’t remember, but the concept is that when a company/corporation has a lawyer advise them on a course of action which results in them getting sued, they should ALWAYS have a DIFFERENT lawyer defend them at trial (different in-house lawyer is fine).


    Because the lawyer is now committed to defending the course of action that THEY recommended their client take. And frequently they force them down a path trying to justify their previous recommendation so they don’t have to admit they made a mistake, to the detriment of their ACTUAL client.

      Mystified in reply to Olinser. | August 25, 2020 at 9:16 am

      And you would be wrong. Often I’ve been admonished by a governing board that “we have a legal opinion” as their justification for an action or position of the corporation. To which I would often advise, “Give me 15 minutes and I’ll get you a lawyer who gives you a different and opposing opinion.” The client always has the final say in what gets argued, and the client always gets to choose the lawyer who presents the case.

Long winning streak, Oberlin. Oh …wait..nevermind

It’s now accepted leftist dogma that equality of opportunity must be replaced with equality of result. In a school where roughly 50% of the students are female, the fact that nearly 100% of the students punished under this process are male is therefore irrefutable proof of systemic sexism, which should be stamped out vigorously.

    TX-rifraph in reply to henrybowman. | August 24, 2020 at 9:10 pm

    I am not sure it is even equality of result. They just use “equality” as a standalone word. When used by itself, it can mean anything and it can mean nothing all at the same time. Therefore, it means 100% BS always. They want the reader/listener to add the meaning. Before one can apply logic, a word has to have an actual meaning.

      Actually, it’s no longer equality. Now it’s “equity” which means whatever the speaker wants it to mean, as long as the speaker is woke.

Oberlin reminds me of the Animal House line during the paddling: “Thank you, sir. May I have another?”

I have a potted plant that seems to learn better than Oberlin learns.

Oberlin, – educating tomorrows Antifa Nihlists.

they need an intervention, they are addicted to paying legal fees for cases they won’t win

I am sad about what Oberlin has become. 45 years ago,, Oberlin was my “fall back” college. In those days, it was a good college.

They can’t go broke soon enough. I hope the court has them securing enough money to pay their losses with interest.

BierceAmbrose | August 24, 2020 at 9:42 pm

What do they think their job actually is?

I’m confused — the court is stating that men actually have rights?

    Milhouse in reply to guyjones. | August 26, 2020 at 2:02 am

    The courts have always said men have rights. The people who deny that men have rights are college administrators, corporate HR departments, and civil servants.

Say good night, Oberlin. Say hello to the real world.

caseoftheblues | August 25, 2020 at 5:55 am

Past time to start suing the girls bringing these fake life destroying charges too

This is actually a serious decision point. This case has gone as far as it can go at the moment. Oberlin has three choices.

1. Go back to trial and defend itself,

2. Try to appeal to the United States Supreme Court.

3. Hope that the Democrats get elected and try to get Congress to change the law and make it explicitly biased in favor of colleges or try to get the Administration to write a regulation to that effect.

If Oberlin goes back to court, there is no guarantee that they will lose. At this stage, the Sixth Circuit, as it itself said, has to assume all inferences in favor of the plaintiff.

It is unlikely that the Supreme Court will take the case unless there is a split of authority in other Circuits, which I have not researched.

#3 is pretty close to the top of the loony left list of things to do. They are still furious over Betsy De Vos’s repudiation of the infamous “Dear Colleague letter,” which was the Obama Administration’s attempt to issue a regulation without satisfying the requirements of the Administrative Procedure Act.

The truly sad part is how Oberlin College is a microcosm of our entire university system where the Left has turned what used to be an incredible resource into a wasteland of leftist ideology. What used to take raw talent and mold it into a valuable finished product of great value, they now take anyone with a heartbeat to turn them into social justice warriors damaged almost beyond repair and of little use or value to the country. The real pity is that these universities are filled with people so educated and knowledgeable that their arrogance prevents them from seeing the obvious. Another once great institution is now is ruins with little hope of being salvaged.

Another Voice | August 25, 2020 at 4:18 pm

“This means the case goes forward, and Oberlin College will be subjected to depositions and other discovery, unless the Supreme Court takes the case or the case settles promptly.”

Promptly is not how they roll.
1.> Never, never admit your wrong.
2.> Obfuscate, appeal, and muddy the waters some more with more meaningless counter appeals.
3.> Repeat.

Apparently the Trustees and Board Managers believe that they are winning their cause and will probably continue right up to the day that a new lock and closed sign is put on the front door .

Just one college among many nationwide that have become full-blown SJW factories. Expensive lessons for all involved and none of it came from the classroom.

I wonder how many of the white BLM protesters are SJW college students.