Law Oberlin College loses appeal in suit by expelled male student, case reinstated - The legal woes just keep piling up!

From Legal Insurrection

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:

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.
* * *
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.

Coming (presumably) shortly before another potential drubbing from the Gibson's Bakery case as it goes to appeal, this is pretty damning for them. A couple of other interesting points: the Title IX Coordinator named in the suit is the same person who organised the harassment against Gibson's that won them the judgement; and the judge who wrote the majority opinion, Raymond Kethledge, is on Trump's SCOTUS shortlist.
 
Wait, so she was sober enough to consent to sexual intercourse but not sober enough to consent to giving a blowjob? Did she take five shots in between the two or some shit?
My best guess of how they could try and justify it would be either:

She communicated that she wanted sex while she was sober (the text messages) and wanted it while drunk therefore it's fine, but she only indicated she was fine with oral when she was drunk so rape.

Or she said after sex but before oral that she was not sober and therefore the male student should have at that point unambiguously known she couldn't consent and still went along. Therefore sex not rape because he might have not known she couldn't consent but oral rape because he knew she couldn't consent.

Yes both of those lines of thought are crazy and dont follow the code of conduct he was supposed to be judged under, but we already knew he was fucked from the start.
 
Seriously though, men just need to stop whining and stick their necks out and accept all legal consequences for the sake of college girls who want their storybook "met at the uni library" romance. Otherwise they're just scared manbaby incels.

Stick to men if you swing that way. Even if you wind up full blown raped at least it wont make headlines because gay rape doesnt real. Unless it's in prison, then it's funny!
 
My best guess of how they could try and justify it would be either:

She communicated that she wanted sex while she was sober (the text messages) and wanted it while drunk therefore it's fine, but she only indicated she was fine with oral when she was drunk so rape.

Or she said after sex but before oral that she was not sober and therefore the male student should have at that point unambiguously known she couldn't consent and still went along. Therefore sex not rape because he might have not known she couldn't consent but oral rape because he knew she couldn't consent.

Yes both of those lines of thought are crazy and dont follow the code of conduct he was supposed to be judged under, but we already knew he was fucked from the start.

Also, legally, voluntary intoxication is not a criminal defense, therefore, it shouldn't be proof of criminal intent towards you by other parties.

I.E. - You can't say "Yeah, I punched him in the face, but I was drunk, so, you can't charge me with assault" If you got yourself drunk, whatever you did is still your fault.

It only naturally follows that "Yeah, I had a few drinks, I was legally "drunk" at the time, but wasn't falling over, didn't slur my words or give any other sign of having diminished or incapacitated mental facilities that a 3rd party would immediately notice. But that doesn't matter, I was drunk, so even though I consented, the other party should have known I was totally and completely helpless and unable to consent to anything, I might as well have been passed out" is ALSO a load of BS.

If you got yourself drunk, you can't claim you were robbed if you walked into a convenience store and bought something you didn't really want because the clerk "should have known" you didn't have 100% of your faculties and that when he let you buy 5 packs of condoms, he was just taking advantage of your temporary vulnerability and didn't verify you REALLY wanted to do it all the way through the transaction...

And if alcohol consumption de facto makes it impossible to consent to sex, what does that make the thousands of people who mutually have a bottle of wine over dinner as an intentional precursor TO sex every day? Rapists? Abusers? Sadists? You wanna go arrest them all too?

If you agree to go on a date with me, don't show any signs of distress, discomfort or diminished capacitiy at any time, meet me at the door wearing something sexy, go through an entire dinner and move pleasantly, invite me back up to your place for coffee and after increasingly-flirty talk you slowly start to undress right in front of me, you can't then backhand me across the face and cry "SEXUAL ASSAULT" if I try to touch you because "I never said you could do THAT! "

You gave every social cue a reasonable person could and would assume was consent the ENTIRE TIME, you can't treat this like some kind of funny game of "Simon Says" , it's neither productive, fair or just. Especially not when the cost of "losing" it is a man's personal ruination for sure and possible incarceration as well.

Puritans make bad laws

And when they are allowed to enforce them, they make nightmares where "yes" means "no" and you obviously SHOULD HAVE known that.
 
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Also, legally, voluntary intoxication is not a criminal defense, therefore, it shouldn't be proof of criminal intent towards you by other parties.

I.E. - You can't say "Yeah, I punched him in the face, but I was drunk, so, you can't charge me with assault" If you got yourself drunk, whatever you did is still your fault.

It only naturally follows that "Yeah, I had a few drinks, I was legally "drunk" at the time, but wasn't falling over, didn't slur my words or give any other sign of having diminished or incapacitated mental facilities that a 3rd party would immediately notice. But that doesn't matter, I was drunk, so even though I consented, the other party should have known I was totally and completely helpless and unable to consent to anything, I might as well have been passed out" is ALSO a load of BS.

If you got yourself drunk, you can't claim you were robbed if you walked into a convenience store and bought something you didn't really want because the clerk "should have known" you didn't have 100% of your faculties and that when he let you buy 5 packs of condoms, he was just taking advantage of your temporary vulnerability and didn't verify you REALLY wanted to do it all the way through the transaction...

And if alcohol consumption de facto makes it impossible to consent to sex, what does that make the thousands of people who mutually have a bottle of wine over dinner as an intentional precursor TO sex every day? Rapists? Abusers? Sadists? You wanna go arrest them all too?

If you agree to go on a date with me, don't show any signs of distress, discomfort or diminished capacitiy at any time, meet me at the door wearing something sexy, go through an entire dinner and move pleasantly, invite me back up to your place for coffee and after increasingly-flirty talk you slowly start to undress right in front of me, you can't then backhand me across the face and cry "SEXUAL ASSAULT" if I try to touch you because "I never said you could do THAT! "

You gave every social cue a reasonable person could and would assume was consent the ENTIRE TIME, you can't treat this like some kind of funny game of "Simon Says" , it's neither productive, fair or just. Especially not when the cost of "losing" it is a man's personal ruination for sure and possible incarceration as well.

Puritans make bad laws

And when they are allowed to enforce them, they make nightmares where "yes" means "no" and you obviously SHOULD HAVE known that.
I think the reasonable distinction is "a bit drunk" vs "literally unconscious." Like if a guy finds a passed out chick and has sex with her that's obviously rape. Or if she's in and out of consciousness or not clearly aware of where she is/what's going on around her, she obviously can't consent to sex. If she's had two drinks and is a little tipsy, or if she's had more drinks but she's clearly alert and oriented to her surroundings, able to understand what's going on and communicate, then it's ridiculous to call that rape.
 
I think the reasonable distinction is "a bit drunk" vs "literally unconscious." Like if a guy finds a passed out chick and has sex with her that's obviously rape. Or if she's in and out of consciousness or not clearly aware of where she is/what's going on around her, she obviously can't consent to sex. If she's had two drinks and is a little tipsy, or if she's had more drinks but she's clearly alert and oriented to her surroundings, able to understand what's going on and communicate, then it's ridiculous to call that rape.

I never said that anyone who drinks to blackout deserves whatever happens, but also, two glasses of wine doesn't mean you suddenly are rendered with as much personal agency as a potted plant and a victim for the rest of the night because anything anyone asks of you is beyond your ability to consent now.... People seem to want the best of both worlds, want to be an adult who can do whatever they want when they start drinking, but an innocent child others are responsible for once drunk, or even once the first beverage is down.

Sorry, pick one. And stick to it.

If you SEEM to be in control and aren't resisting anything, it's not anyone else's fault if they make the reasonable assumption that turns out to be false.

Is it SMART to have sex with drunken strangers?

I lean towards "no". For just that reason.

But is it immoral to the point of being an ETHICAL and possible CRIMINAL violation? Even if they say "yes" or even "please", and the word "no" never gets used?

I lean towards "no" on that one too.

When it becomes criminal to have read someone's emotions wrong, and disingenuous to take their own words at face-value? That's where I want off this ride.
 
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I never said that anyone who drinks to blackout deserves whatever happens, but also, two glasses of wine doesn't mean you suddenly are rendered with as much personal agency as a potted plant and a victim for the rest of the night because anything anyone asks of you is beyond your ability to consent now.... People seem to want the best of both worlds, want to be an adult who can do whatever they want when they start drinking, but an innocent child others are responsible for once drunk, or even once the first beverage is down.

Sorry, pick one. And stick to it.

If you SEEM to be in control and aren't resisting anything, it's not anyone else's fault if they make the reasonable assumption that turns out to be false.

Is it SMART to have sex with drunken strangers?

I lean towards "no". For just that reason.

But is it immoral to the point of being an ETHICAL and possible CRIMINAL violation? Even if they say "yes" or even "please", and the word "no" never gets used?

I lean towards "no" on that one too.

When it becomes criminal to have read someone's emotions wrong, that's where I want off this ride.
Yeah, for sure. It's all about a reasonable understanding. Someone's up and about and is like "Man, I'm drunk. Let's have sex." that's obviously consent. Chick is passed out face down at the party, obviously not so much. Any reasonable person can discern between the two. If you try and make it too black-and-white on either side, like "oh the chick said she wasn't sober at one point so now it's rape" or "well she chose to drink so she was consenting to whatever happens to her," then you start running into problems. I think these Oberlin types are over-correcting for the latter situation, and end up creating the former.

Or they're walking personality disorders who hate men and love abusing power. Or some combination of the two. tl:dr; the reasonable person standard exists for a good reason.
 
The more interesting play will be to watch how the DOE acts towards Oberlin. The Appeals ruling alone would seem to provide enough evidence that the school was engaged in widespread Title IX violations against Male Students. Enough to open a formal investigation... and freeze Federal Funding Pending it’s completion.
 
Yeah, for sure. It's all about a reasonable understanding. Someone's up and about and is like "Man, I'm drunk. Let's have sex." that's obviously consent. Chick is passed out face down at the party, obviously not so much. Any reasonable person can discern between the two

Except SJWs, who by their very nature, aren't reasonable people and should never be able to run these quasi-courts where guilt is predetermined in the name of political expediency and the motions of procedure are just to humiliate the defendant while making it "official".
 
men just need to stop whining and stick their necks out
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but also, two glasses of wine doesn't mean you suddenly are rendered with as much personal agency as a potted plant and a victim for the rest of the night because anything anyone asks of you is beyond your ability to consent now....
i drink 2 glasses of wine with dinner and drive afterwards, no problem.
 
I've seen cases like this, or accusations of rape after a guy administers CPR to a woman, or all sorts of other shit. If you want to avoid these cases, pretend women don't exist. Perform the exact bare minimum amount of interaction with women needed to function in society. If one's drowning, keep walking. If one's about to get hit by a car, keep walking. If one's taking her clothes off and winking at you, keep walking.

I hate the fact that I have to ration my fucking empathy because of troons, psychopaths, sociopaths, and rabid SJWs abusing it, but being a societal husk means that I don't have to worry about lawsuits at all.
 
like there’s a chance of that lol

There is, however, a noted decline in people wanting to have sex and wanting relationships. Especially in the college to early 30's demographic, strange how the social engineers can't see that making the social institution of dating a massive personal risk would've had such a consequence...
 
There is, however, a noted decline in people wanting to have sex and wanting relationships. Especially in the college to early 30's demographic, strange how the social engineers can't see that making the social institution of dating a massive personal risk would've had such a consequence...

I meant that there’s no chance of HHH getting laid. Making a cheap jab.
 
Thought I'd put this here rather than start another thread. Last week, another Appeals Court ruled against US campus kangaroo courts - this time the 8th Circuit against the University of Arkansas. And the judge who wrote the opinion, Steven Colloton, is the fourth judge on Trump's SCOTUS shortlist to write an anti-college opinion (after Thapar, Barrett, and Kethledge).
 
Unfortunately, they still are refusing to see that any US "court" that doesn't use "Beyond reasonable doubt" as the standard of guilt is a political-driven farce and fundamentally unfair.

Also, saying that it's not a Due Process violation to be tried by a wealthy and powerful institution that can and nakedly does play favorites to self-promote is unacceptable blindness to the abuse that's been very clearly documented.
 
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