APPEAL: Judges Tough on Both Sides in Tenth Circuit Appeal
Wednesday featured the fifteenth Appeals Court oral argument in a post-Dear Colleague letter lawsuit from an accused student. The Tenth Circuit heard an appeal of a summary judgment victory by the University of Denver—the first lawsuit from an accused student before the circuit. After oral argument, it’s hard to tell which side will prevail. Indeed, of the fifteen oral arguments to date, this panel was by far the toughest to read.
The complaint and the expert report in the case, from University of Colorado Law professor Aya Gruber, presented the story of a single-investigator model run amok, with biased assumptions by the two investigators producing a biased outcome. As Gruber put it, “Nearly all the investigative deficiencies, sloppy reasoning, and inconsistent application of credibility determinants benefit Complainant. Reading the Report, it is as if the investigators were under a directive to collect, manage, and analyze the evidence in the ‘light most favorable to the complainant.’” Of the 35 Title IX cases at DU between the Dear Colleague letter and 2016, every accused student was male; and all but one of the accusers was female.
The Tenth Circuit panel included Judges Robert Bacharach (Obama nominee), Joel Carson (Trump nominee), and Monroe McKay (a 91-year-old senior judge nominated by Jimmy Carter). The appeal raised two issues—Title IX and the question of whether the Dear Colleague letter made DU a state actor and therefore subject to the due process clause. The panel showed no interest in the latter question and seems likely to affirm the district court’s granting DU summary judgment….The Title IX issue, however, was a far closer call, with each judge asking very difficult questions of both sides.
In the end, Carson seemed more sympathetic to the accused student, Bacharach seemed to tilt to DU, and McKay was a tough read. But this is a case in which anything from a 3-0 university win to a 3-0 student win seems possible. Based on the questions, a DU win likely would produce an opinion that hewed closely to the facts at hand. But a student win could generate a significant opinion.
academicwonderland-includes audio excerpts KC Johnson
