A frustrating oral argument today before a Ninth Circuit panel in Seattle seemed to foretell a victory by the University of Oregon in the first due process/Title IX lawsuit to reach the Ninth Circuit. While the panel did not seem particularly enthusiastic about Oregon’s case, there was nothing in the oral argument to suggest that a victory for the accused students was likely. Oregon’s general counsel appeared intent on obscuring the issues at play. The complaint in the case wasn’t particularly clear, vexing all three judges at various points in the argument. And the accused student’s lawyer devoted more than 20 percent of his oral argument time to a Title IX selective enforcement claim for which he could not produce any specific evidence from his complaint. It was a very curious tactical decision, especially given the due process concerns regarding a lack of cross-examination in the case.
If the university seems likely to prevail, the manner in which it does so could be quite significant. Because of the peculiar facts of this case, the court could choose to render an exceptionally narrow decision. On the other hand, there are enough troubling facts in this case–a rush-to-judgment statement from the UO president, a guilt-presuming campus atmosphere, very one-sided campus procedures–that a comprehensive ruling in Oregon’s favor could foreclose a wide range of lawsuits from accused students in the Ninth Circuit.
academicwonderland By KC Johnson
