HORRIBLE LIKELY WIN For ASU In Ninth Circuit Appeal. Judge Imagined Facts Not In The Record.
Recently the Ninth Circuit heard oral arguments in an appeal filed by an Arizona State University graduate student, Paul Schwake, who was found guilty of sexual misconduct by ASU—harming his post-university career as a researcher. It seems likely, though far from certain, that the university will prevail, though both parties got tough questions.
The specifics of this case were a little unusual because Schwake was a PhD student, doing research in a lab. So too was his accuser, with whom he had a brief romantic relationship. When the accuser filed her complaint, ASU imposed swift punishment, carrying about a barebones investigation that deemed Schwake responsible without considering his exculpatory evidence. The university also denied Schwake all access to his lab (ruining his experiments), rather than simply ensuring that he did his research when the accuser wasn’t there. Word on campus allegedly spread about his fate, harming his reputation; according to the complaint, one ASU professor, Thomas Seager, told his class that Schwake had been “convicted” and referenced specific details about the case.
The panel included Judges Kim Wardlaw (Clinton nominee), Milan Smith (W. Bush nominee), and Patrick Bumatay (Trump nominee). The most striking aspect of the hearing was the performance of Judge Smith, who repeatedly misrepresented the record to claim that Schwake had no case. According to Judge Smith, this was an open-and-shut case—Schwake’s complaint didn’t even belong in court. Dripping with condescension in deeming Schwake “upset” with the outcome, Smith explained that the student had entered into a settlement with ASU: in exchange for receiving his degree, he forfeited the right to any disciplinary hearing. (Smith even suggested that the non-existent settlement gave Schwake access to his lab, a false claim that seemed to bewilder even ASU’s lawyer.) Second, to the extent Schwake’s reputation was harmed, it came about because he filed the lawsuit, not due to anything that ASU did. Judge Smith was wrong on both counts. No settlement existed, and Schwake’s reputational harm, as documented in his complaint, predated the filing of the lawsuit.
This is a close case, and reasonable people could disagree on which side should prevail. But Smith’s performance was an embarrassment. He spent several minutes pontificating about imagined facts that weren’t actually before him, and every exchange between the judge and lawyers on each side was a waste of time since he presumed two key facts (a settlement, and that Schwake’s reputational harm only coming from his lawsuit) that the record contradicted…The likeliest outcome? A 3-0 win for ASU.
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