Just in: In first-of-kind ruling, court issues preliminary injunction against @rpi for insisting on adjudicating a TIX case that originated pre-8/14 w/o following the new, more due process-friendly TIX procedures. Court v. dubious about RPI's rationale for doing so.
Court--citing to CA2 precedent in Columbia & Menaker--notes oddity of university keeping two sets of procedures: " disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process."
Court also notes "bizarre" RPI rationale--in case of mutual intoxication--seemingly not to apply same standards to acc'd student as it did to accuser.
Court also faults RPI decisionmaking biases: where "female's complaint is accepted, flaws and all, while the male's complaint is rejected for having similar flaws, that discrepancy lends force to the conclusion that the difference is traceable to gender discrimination."
Court also clear that--regardless of ED's intent w/blog post saying that regs aren't retroactive to pre-8/14 allegations--courts aren't bound to follow that reasoning in evaluating TIX lawsuits from acc'd students.
On irreparable harm: if RPI can ignore new TIX regs, acc'd student "will be going into a hearing at which there is substantial evidence that the factfinder is biased against him based on his sex and will thus lean toward finding guilt based on his sex alone."
Court: "It is troubling enough that defendant frames protections for one individual's due process rights, whether that individual be male or female, as inciting campus sexual assault on a mass scale"--but RPI also seems to presume guilt in its arguments.
Public interest factor: "that the new Title IX rules exist at all is evidence that national policymakers have determined that protecting the due process rights of those accused of sexual assault on college campuses is a matter of grave national import."
Court bluntly concludes, reflecting point long made by @ScottGreenfield : "whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims."
Full ruling, from Judge David Hurd (Clinton nominee), is below:
Acc'd student's case (expertly, given novelty of the issue) handled by Julie Nociolo, of #joneshackermurphy.

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More from @kcjohnson9

18 Sep
Just in: Court denies @AmericanU MTD in acc'd student lawsuit, on both TIX & breach of contract grounds. W/no appellate decisions on issue from CADC, court also joins CA3, CA8, and CA9 in adopting the plaintiff-friendly CA7 Purdue TIX standard. Image
This was a v. strong TIX opinion, albeit one based on a v. strong complaint. Court comments on single inv'r seemingly inexplicable decision to ding credibility of acc'd student on minor issues while ignoring significant credibility concerns in accuser's story. Image
Court also comments on oddity of single inv'r seemingly discounting accused student's version of events simply b/c it came from...an acc'd student. Image
Read 5 tweets
10 Sep
.@RepBonamici opens House hearing by denouncing TIX regs as "forcing survivors to endure live x-examination." Does she oppose the use of x-exam in civil or criminal contexts? Does she disagree w/the SupCt on its value?
.@nwlc's Goss Graves testifies that "the survivors we work with are deeply invested in due process" (except when it involves x-examination, access to evidence, notice, or bias-free training, apparently).
Excellent comment from @virginiafoxx --from argument of opponents, it seems as if they seem the stakes in campus TIX adjudications as so low that schools should be able to dispense w/core due process protections.
Read 9 tweets
4 Sep
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.
Read 12 tweets
2 Sep
Hearing underway in final challenge to new TIX regs, from @nwlc. Judge Young opens w/skepticism about whether student plaintiffs in the case have standing. NWLC disagrees. Young: "W/all respect, I find that very difficult to comprehend." Dismisses two accuser plaintiffs.
Young: "I'm disposed to consolidate" PI motion w/SJ motion. Says he'd be OK with trial w/in days(!) over the new TIX regs.
Judge Young: “This is very thin—and I say this w/respect”—how are missions of accusers' rights orgs being frustrated? “It’s not enough just to object to the rule.”
Read 6 tweets
27 Aug
CA legislature on verge of passing bill to require colleges & univs to defy the new TIX regs by prohibiting x-exam; & to give schools authority to defy various CA appellate rulings by not even providing a hearing.
leginfo.legislature.ca.gov/faces/billText… Image
Measure passed the Senate 30-8 (though before key amendments were included); has passed key House committees.
Incredibly, the bill is sold on grounds it will provide greater "clarity."
Implementation date isn't until 2022 (w/apparent hope that regs will be gone by then). No mention of policy on giving schools a choice to hold a hearing at all as violating CA court decisions. Image
Read 5 tweets
20 Aug
Just in: district court denies summary judgment to @CUBoulder on multiple due process grounds--propriety of single-investigator model, lack of x-examination, & withholding identity of key pro-accuser witness. Schedules trial for Dec. 1. Image
On single inv'r model, court notes: "Requiring a hearing before a neutral arbitrator would also reduce the risk of error . . . provid[ing] a fresh perspective on any credibility determinations and decrease the likelihood that a party would be erroneously found responsible." Image
Remarkably blunt conclusion on x-examination--quotes SCOTUS on truth-seeking nature of x-examination, notes obvious need from student's side. "The University’s interests in limiting procedural safeguards relating to student’s hearing rights are less evident." Image
Read 6 tweets

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