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Testimony was ‘favorable’ to accused student but college ‘cherry-pick[ed]’ it

Oberlin College judged a male student responsible for sexual assault because his female partner allegedly said “I am not sober” during the encounter.

While a trial court upheld the college’s finding and expulsion of the student, an appeals court expressed skepticism that Oberlin showed the accuser was incapable of consent.

Lawyers for “John Doe” and the college made arguments before a three-judge panel of the 6th U.S. Circuit Court of Appeals last month. Judging by their questions and reactions to each party’s arguments, the Trump nominee will likely be the deciding vote.

John’s lawyer presented evidence that Oberlin convicted 100 percent of the students that went through its formal Title IX process.

The 6th Circuit upheld the importance of such statistical evidence in Doe v. Miami, according to Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation. He noted in a blog post that the circuit’s Doe v. Baum precedent also dictates that such cases should only be dismissed if the student doesn’t have a “wing and a prayer” of succeeding.

Judge Ronald Gilman, appointed by President Clinton and the friendliest to Oberlin on the panel, pushed back at the 100 percent figure. “You’ve overstated it a little, haven’t you?” he asked John’s lawyer Chris Muha.

MORE: To Oberlin, sex is rape if woman says ‘I am not sober’

Gilman contended that because not all complaints were referred to an investigation or a hearing, that means “a lot of times the males were exonerated.” He asked no questions of Oberlin lawyer Aaron Herzing.

(The record suggests complaints at Oberlin don’t go forward when an accuser opts out of participating or agrees to an informal resolution process.)

While it is highly likely that Gilman will side with Oberlin, Judge Raymond Kethledge didn’t mince his words when it was Herzing’s turn to speak.

“Nothing personal, but the … brief does seem to cherry-pick some of the testimony” regarding the evidence of the accuser’s incapacitation, said Kethledge, appointed by President George W. Bush.

The witnesses whose testimony was “cherry-pick[ed]” by the college were actually “favorable” to John, considering the “totality” of their testimony, Kethledge said. “Why isn’t that kind of telling in the challenges you face in this appeal?”

The judge cautioned that he was “not attributing anything bad” to Herzing. “That’s your hand,” Kethledge said, implying that the cards Oberlin dealt Herzing weren’t very good.

‘I’ve just been totally confused by the standard that the school has adopted’

Kethledge expressed his skepticism that the college had appointed people who act in the best of interest of students. John had claimed that his hearing advisor had retweeted “To survivors everywhere, we believe you,” the judge noted.

The Bush nominee seemed to contend that the lower court had missed the forest for the trees. At this stage of the case – a motion to dismiss – a court is supposed to look at the evidence as a whole, but the trial judge used a “silo type analysis” by looking at each piece of evidence individually and deeming it insufficient.

In another part of the argument, Kethledge took issue with Oberlin’s rebuttal to the 100 percent conviction evidence offered by John Doe. Oberlin argued that 90 percent of Title IX complaints did not go forward, rebutting John’s claims of gender bias.

Kethledge noted that in 80 percent of these instances, the accuser chose for the investigation to end, functionally terminating the proceeding without Oberlin making a decision either way.

The judge dug in on the incapacitation standard on which Oberlin based its finding against John. Kethledge suggested to Herzing that the college failed to meet that standard by a wide margin, which itself points to evidence of bias.

MORE: Oberlin’s motion for dismissal is bizarre

Judge Chad Readler, nominated by President Trump, jumped in on this point: “I’ve just been totally confused by the standard that the school has adopted.”

Oberlin had claimed that the accuser was incapacitated during the sexual encounter, while the accuser claimed that she was sexually assaulted by force but still aware of what was occuring.

As Johnson wrote in his analysis, “Readler’s questions tended to be more informational, making it harder to get his read on the case than Kethledge or Gilman.” The professor predicted that it’s a “near-certainty” that one judge will dissent from the ruling, meaning “it may be some time before we know” the outcome and impact of this case.

Oberlin has seen its fair share of controversy in court in the past year. A jury found it guilty of defaming and retaliating against a local bakery that enforced its anti-shoplifting policy without racial animus.

It’s not only fighting the damages award, originally set at $44 million and subsequently reduced to $25 million, but also appealing the verdict itself.

MORE: Oberlin hires pricey D.C. lawyers to appeal defamation verdict

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