Just in: Fourth Appeals Court win for an acc'd student in as many months, this time from CA8 in closely-watched @UArkansas case. Sweeping opinion on Title IX; university prevails on due process but w/language on x-exam that likely will appear in other acc'd student lawsuits. 
Bgrd: this was an instance where (even construing facts in the university's favor), the acc'd student almost certainly was innocent. (Inv'r cleared student; panel found accuser incapacitated but not during sex, & never said acc'd student would have known of her "incapacitation.")
CA8 becomes the third circuit--joining CA3 and CA9--to adopt Judge Barrett's plaintiff-friendly pleading standard from the CA7 opinion in Purdue.
As in the recent CA6 Oberlin decision, CA8 concludes that likely innocence of the acc'd student is, in & of itself, grounds for inferring gender bias. From opinion, this appears to have been the key factor for the panel.
Court cites only two other factors in TIX analysis: the odd sanction (acc'd student was only put on probation--since univ seemed to want guilty finding to appease campus protests) & public pressure.
As with Oberlin, a relatively low bar to clear, at least for innocent students.
As with Oberlin, a relatively low bar to clear, at least for innocent students.
Core Title IX holding of opinion: TIX complaint moves forward in cases w/"a dubious decision in [student's] particular case taken against the backdrop of substantial pressure on the University to demonstrate that it was responsive to female complainants."
Court notes that this standard (as it must) accepts facts as offered in complaint. But in this particular case, the basic facts (public pressure, the odd sanction, the curious nature of evidentiary finding) do not appear to be in dispute.
Court affirms district court on TIX grounds. On notice: concedes that univ officials never gave acc'd student any info on accuser's decision to change her theory of the offense *in the appeals process.* But--under restrictive CA8 precedent--holds accuser's appeal filing enough.
Other key holding involves x-exam. Opinion implies single inv'r model *would* violate due process. Says indirect x-exam *can* violate due process--but only if acc'd student specifically pleads relevant Qs that panel didn't ask. Acc'd student here didn't do so.
X-exam holding was telegraphed at the v. end of the oral argument in Q asked by Judge Colloton of acc'd student's lawyer.
Full opinion, from Judge Steven Colloton, is below. Acc'd student's case was argued by Heather Zachary:
ecf.ca8.uscourts.gov/opndir/20/09/1…
ecf.ca8.uscourts.gov/opndir/20/09/1…
Here's a thread from @samk_harris on the opinion:
