No one has followed lawsuits by male students seeking relief from the denial of due process in campus Title IX sex tribunals more closely than KC Johnson. As a result, KC has watched as certain trends developed. They’re imperfect as a predictor, but pretty darn good. Most significantly, they are not the predictors that law would expect or, in a better system, allow. But they emerge nonetheless, in all their harsh ugliness and cold reality.
For example, Obama and Biden appointed judges are so supportive of female students’ claims of rape that they are extremely disinclined to reverse because the male student was railroaded into conviction. They’re inclined to believe that colleges aren’t anti-male, but just anti-rapist and pro-“survivor.” They will bend over backwards to come up with some ridiculous excuse to rule against the male student, no matter how badly his due process rights were denied or how flagrant the violation.
Not all judges appointed by Democrats, however, just as not all Republican appointed judges have proven amenable to these suits.
Two patterns have combined to produce these results. The first is a surprising unwillingness of federal judges to show deference to universities in this area. At a general level, among Appeals Court judges (the situation is much different among district court judges) Trump nominees have been better than W. Bush nominees who have been better than Clinton nominees who have been better than Obama nominees. There are, of course, exceptions: Judge William Pryor, a conservative W. Bush nominee, authored the most pro-university decision of any court, Doe v. Samford University; and Judge Kim Wardlaw, a very liberal Clinton nominee, eviscerated Arizona State’s lawyer during oral argument for the pathbreaking decision, Schwake v. Arizona Board of Regents. But, on the whole, at the appellate level, accused students have fared better with a red-state Trump or W. Bush nominee than a blue-state Obama nominee.
Which brings us to another, far more troubling, trend. Unless a male student presents a reasonably strong, plausible claim that he was not only denied due process, but is factually innocent, judges will ignore the procedural defects and find a way to rule against the plaintiff. No matter how strong the case is on the law, if the case presents weak facts, it’s almost certainly a loser.
No accused student has survived summary judgment on Title IX—whether it’s Rowles or Olson or Dismukes or Anderson or Univ. of Iowa or Clark Univ.—where the court saw no indication, upon reviewing the facts, that the university got it wrong. Courts have consistently declined to order a trial on a gender discrimination claim when the university’s ultimate finding of responsibility seemed justified, even if there were some signs of gender bias present in the case.
To appreciate the problem, consider that guilt plays a limited role in criminal appeals where a defendant has been denied his rights, such as an unconstitutional warrantless search and seizure. In a better legal universe, the denial of due process should be reason enough to reverse, regardless of whether the male student can prove his innocence. In this legal universe, not so much.
But even in cases where the male accused makes a plausible claim of innocence but was deprived of the opportunity to present his defense, the influence of the judges faced is increasingly making the legal path treacherous.
Both of those patterns, however, appear to be breaking down. The Senate has already confirmed 36 Appeals Court judges nominated by Biden—who as a whole have been younger and more liberal than Obama nominees. (There’s also reason to suspect that a preferred viewpoint on Title IX matters has been a vetting issue for Biden in a way that it wasn’t for Obama—in part because Biden cares more about this issue and in part because Obama basically had no more appellate appointments after 2014, when lawsuits from accused students surged.) Biden nominees have heavy influence in the First and Second Circuits and significant influence in the Third, Sixth, and Ninth Circuits—all courts with good precedent that could be eroded by new decisions from Biden-dominated panels. On the Second Circuit, where the shift has been the most pronounced, six of the thirteen judges—all liberal women (and at the appellate level, accused students have done better with men than with women)—were nominated by Biden.
In light of the shift in the makeup of circuit judges, the good law that developed over the past few years is at risk of being undone, rationalized away and, ultimately, overruled.
These kamikaze appeals are especially dangerous because the second pattern—Appeals Courts minimizing decisions in weak appeals—also has begun to shift. Two recent Fourth Circuit opinions illustrate the problem. In the no-chance Virginia State appeal, the court adopted a new pleading standard for Title IX cases, adding a “but-for” requirement that district courts have interpreted very differently but that basically heightens the bar for accused students. (No other circuit uses this standard.) And earlier this year, in the similarly no-chance Doe v. The Citadel appeal, the Fourth Circuit expressly rejected the right to cross-examination in accused student cases (after the accused student, incredibly, demanded this right in his briefing even though Citadel procedures had given him a right to cross-examination) and for good measure threw in a passage implying that students accused of sexual assault deserve no more due process rights than students accused of a noise violation. The Citadel opinion already has been cited to help torpedo stronger accused student lawsuits in Doe v. Wake Forest University and in the recent Fourth Circuit Virginia Tech opinion.
As KC notes, this is not to say that any student who loses at the district court level and believes that his case is strong enough on the facts to pursue on appeal shouldn’t do so. Indeed, the only way to change bad law is to challenge it.
That doesn’t mean, of course, that students with strong cases who draw bad district court judges should forego appeals—the only way one of these cases is likely to make it to the Supreme Court is if an Appeals Court sides with a university in a very strong case. (The pending Loyola case in the Seventh Circuit?) But it does mean that futile appeals carry a risk of eroding good law that might not have been present in the more favorable appellate environment of 2020 or early 2021.
The problem is distinguishing between those cases with sufficiently strong facts and law to push as opposed to cases that are weak on the facts and give a circuit court with a new retinue of judges the opportunity to undermine the gains made over the past few years. KC calls the Kamikaze appeals, certain to lose from the outset, but more significantly, certain to offer an appellate court the chance to do severe damage to the state of the law in the process. Discretion is often the better part of valor, and it only takes a couple of these Kamikaze appeals to do major damage to the state of this fragile, nascent law.