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”
It has been a while since we wrote about the case of John Doe No. 1 against Oberlin College. (Because there now is a second John Doe case against Oberlin College, we are now referring to this case as John Doe No. 1.)
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).
Prof. K.C. Johnson has an extensive Twitter thread on the opinion:
Just in: In powerful opinion from Judge Kethledge, CA6 sides w/acc’d student in @oberlincollege case, reverses district court’s granting of Oberlin MTD. Judge Gilman (as expected after oral argument) dissented. pic.twitter.com/NMIWmb28KL
— KC Johnson (@kcjohnson9) June 29, 2020
Concluding passage from Kethledge: at MTD stage, “one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year.” Acc’d student “amply” stated TIX claim. pic.twitter.com/nJIwH6A0G8
— KC Johnson (@kcjohnson9) June 29, 2020
Here are some excerpts:
Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce. Here, the relevant statute is Title IX of the Higher Education Act of 1965, which bars universities that receive federal funds from discriminating against students based on their sex. John Doe argues that his complaint in this case adequately stated a claim that Oberlin College did precisely that when it determined his responsibility on a sexual-assault allegation. We agree, and reverse the district court’s decision to the contrary.
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On October 6, 2016—about 240 days after Roe’s complaint—the hearing panel issued a decision in which it found Doe responsible for sexual misconduct because “the preponderance of the evidence established that effective consent was not maintained for the entire sexual encounter that occurred on February 28, 2016.” Consent was absent, the panel found, because Roe was incapacitated, as the Policy defined it, from the moment she told Doe that she was “not sober.” The panel cited no other behavior supporting a finding either that Roe was incapacitated as defined by the Policy or that Doe would have had any reason to think she was. Nor did the panel mention the contradiction cited by Nolan, between what Roe told him (and several friends) and what she told the hearing panel, as to whether Doe had “asked” for oral sex. As a sanction, the panel recommended the most severe one: expulsion. The College accepted that recommendation and ordered Doe expelled.
* * *
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. True, the first element of an erroneous-outcome claim—whether the facts of the case “cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome[,]” Baum, 903 F.3d at 585—already takes into account the proceeding’s outcome to some extent. But when the degree of doubt passes from “articulable” to grave, the merits of the decision itself, as a matter of common sense, can support an inference of sex bias. Cf. Doe v. Purdue Univ., 928 F.3d 652, 669 (7th Cir. 2019) (reasoning that a “perplexing” basis of decision can support an inference of sex bias). And on the merits here the panel’s decision was arguably inexplicable. Per the terms of Oberlin’s Policy, intoxication does not negate consent—only “incapacitation” does. The Policy rather precisely defines that term. And the record here provided no apparent basis for a finding that Roe “lack[ed] conscious knowledge of the nature of the act” of oral sex, or that she was “asleep, unconscious, or otherwise unaware that sexual activity [was] occurring[,]” or that she “no longer underst[ood] who [she was] with or what [she was] doing.” Nor was there any apparent reason for Doe to perceive that Roe was in such a state. To the contrary, Roe was conscious and aware enough to engage in a coherent exchange of texts, to make small talk, and to reason that, “[w]e were no longer clothed and I felt that if anything was to continue happening, I wanted a condom.” Thus, on this record and making all inferences in Doe’s favor at this stage of the litigation—one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16 academic year. Doe has amply stated a claim for sex discrimination in violation of Title IX.