studied and found very interesting that i'd be all the almost one of the of the attorneys so we have postponed that brother scheduling and we're going to hear the other two cases and after we complete the other two cases and the german court  the panel will confer with respect to the arguments and then we intend to come back in the courtroom and conduct a question and answer session with the students and the fact that the panel she has ordered me to and i am due to flee attempting to perform them but the first case is john doe versus wallace whoa edit it out number eighteen fourteen ninety seven f was a senior at the university of maryland almost ready to graduate when he was expelled from the university for alleged sexual misconduct and i have alleged basically about the complain alleged three grounds equal protection due process and title nine reverse discrimination but i'm focusing on the due process and reverse discrimination case to be publishing on new project due process and the title nine reverse discrimination ronis outcome claim under title nine now seems to me and i've raised lots of due process arguments in my brief so what's your strongest due process of thank you because i was just about to tell you that my strongest  process argument i want to focus on three points the first point is that there was a huge the most important piece of exculpatory evidence which was in the control and possession of the university was not provided to my client there was a handwritten statement that the alleged victim row wrote when she was interviewed by the police at about six in the morning and in that handwritten statement she described essential e a consensual sexual encounter with a person that she thought was somebody else and if she thought it was somebody else how is it consensual as to your the fence in this case and it's a reason and it's a question of consent certainly can be under the under the sexual misconduct policy consent can be shown by actions i mean we don't need affirmative consent before something happens of somebody acts in a way that the person that's acting believes is consensual and he reasonably believes that she knows that it's him then he's acting with out intent to commit any offense and so the question is you know is this a strict liability crime i don't think it is i mean this is not a criminal case but it is quasar i it's disciplinary so it's i would call it luck it's not a criminal well it's not it wasn't a criminal case allegations as true which you must of the stage of of the complaint then the plaintiff reasonably believes he has consent and if it went on for ten or fifteen minutes and there is verbal consent he has a beard he says they looked each other in the r i they spoke he had every reason to believe that there was consent and this case turned your honour's one can score on his intent i mean he was  expelled because the fact board the s r c the standing review committee found that he acted as a predator that he went in with bad intent but he was never given any opportunity to prove that and the  most important corroborating piece of evidence to his defense was withheld and that is most radio where where is that in the record that letter the letter it's j a three forty five thank you it's her handwritten and was argued below i argued to the court so yes we didn't have only filed the complaint but we obtained it it was an attachment to a motion to dismiss and i argued it below and judge in his considered it so it is part of the record in this case  and and it was provided by the defense i mean the university provided to me it was from the university police i want it so i thought you said it was withheld it was ellie given to me after ice filed a subpoena after this case was filed it was withheld at the time of the hearing it wasn't provided to york it was not provided to my client in connection with the hearing correctly you're claiming that absolutely was impacts the due process a have some sort of relationship with her husband or her fiance and some stranger came into the room and raped her and she do it wasn't just because she consented to have a relationship with somebody doesn't mean she has consent for the  the fact that the victim herself said we know we re way well there was no opportunity there was no opportunity to assess credibility in this case and that's part of the problem i mean we have to  in the test never she never appeared she she the only time the victim ever had to do anything this case was have an interview with the investigator the day after the event and the two statements the statements she gave to the police and the statement in her own hand which was not provided and the statement that she gave to the investigator couldn't be more different i think they described where in there where in the record time three to five much quicker in the statement for branson she said she drank a lot more she said she drank heavily or what isn't there is a there's a question whether she was intoxicated or not that is strongly contested in this case in the statement of bronson she's talks about a lot were drinking then she says to the police in the statement to bronson she says that essentially he forced himself upon her and she just went along the statement the police is a very different thing and it's a statement she thought it was her friend describing essentially consensual act that then when she realized it wasn't the right person she says you're not of it but like to do something about it did understand the significance and that's why i think he didn't understand i'm what i would say to your honor's is that he was under a pretty large misimpression misapprehension that because he was not charge criminally he wasn't going to be in trouble i think he really didn't understand the significance of it until the charge came down six days before the hearing and then he's scrambling and then he says to the director of student conduct i want to senior he was a senior correct was he going to graduate i'd know he had a comment or he had he had a few credits shy he would have had to come back for like i think for tax credits so he was not a graduate was in rez made in the summer he would have graduated in the summer or that or the next where it's a question of a trial judge and we don't review that british proud of that you abuse review that for abuse of discretion you look at the entire process and say was a fair it seems to me and i don't want to give up my total my case because i have two minutes left here but the standard of proof drugs in a said that judge in a said that if i had statistics that might be a different story and i say that's a reasonable burn there are there are cases that say horribly don't make you have to make a private facie case at the pleading stage if this was a private school and i had a reverse discrimination case i wouldn't be able to do a freedom of information request to get the statistics these numbers are in the control of the university my opportunity to test the credibility which this case turned on i mean his intent mattered and even if he was found guilty of a violation he was expelled so it doesn't just go to the violation itself but also to the sanctions he was never able to test her allegations he was never able to bring witnesses because he was convicted by a police report in this case and there was no at the university will say well if the rules talk about witnesses six my client wrote the director of student conduct the next day and said i want the police men to come to my hearing next week i want to continuance but i want to be able to subpoena the police officers and the director of student conduct wrote back to him read the need to bring witnesses that in and sensual element of due process i can't believe you could hear iraq affidavits from these witness well he brought statements and they were not they essentially he brought three statements  who have to apply they don't have to be under oath but but you know what the point of the matter is that the board compared a cold record of a police report with statements of my client on the last minute and said no i never was contacted by the investigator no she wasn't drunk i mean they've refuted some of the important facts but they gave it no credibility and they said in their decision we're not giving them any credibility but credibility needs to be determined you don't bring witnesses to assess that crowd again if we it away from this particular case and you have witnesses for example say you have a traffic accident and you have three witnesses that saw you ten minutes before they are operative to helpful to what has happened about who's who ran the where that's what they stressed well that's not what they say that's what the police that's what the police said they said they recanted that testimony they said that's not what they told the police but that's in the police report and the investigator says when my client raised the fact that they never talked to them the investigator says at the hearing well there is the police report and it it's actually that he didn't want to talk to them because he felt that he had what he needed that we have done in this case is we have combined the evidence gathering the relevance gathering the prosecutorial function in one person of an investigator that then and practical joke may well nominate him he's not saying that's what that's what mr doe originally said and that is what his friends originally said and then mr joe went to the hearing and denied it and that and a standing review committee heard the evidence from the report and decided it did not decide whether or not to let in didn't really hear the evidence from the report because there weren't witnesses there for example why would you not have t jane rowe consented to engage in sexual activity with k p the person whose room she was whose bed she was sleeping in whom she had gone to bed with k p got out of bed dos slips into bed there's a question it s r c did not decide the case on whether or not the act was consensual the sexual activity was consensual the university the side of there was a policy violation because she did not consent to have sex with does so in other words she is having sexual or in activity with somebody she doesn't know what to dark room she's gone to bed she thinks she's in bed with k p c she wakes up and she's engaged in intimate sexual contact with somebody named joe who choose not even where she's in bed with that fact is under spewed it now the police to the discerning eye and that's your best case i'm not quite sure that's right because remember there's the beer or at least analyze what the decision of the university what is s r c stand the standing review committee stand what the standing review commish standing review committee right so they're the ones that are making a decision on whether or not to throw him out of school they're the ones who made a had this proceeding yes that where they did not the continuance in the middle of following yes but after four months of this process going to be noticed i mean six days before the hearing you under six days before the hearing yes or no yes they gave him section on it and they said scheduled a hearing in the middle of final week i don't know whether it was final week that week or whether he was fourteen or early may it was in mid may and he was meeting with the director of the office a student conduct the day before that's what called an outcome and so the processes i thought you said when you were beginning to answer is i know it's hard because the questions are coming fast and furious but i thought you said just a second to go  going on for months it had been so good so what what didn't he participate in before with rain that he wished any other opportunity he had to put forth his case yes he had multiple opportunities he was advised in writing in in january that the university had started a sexual misconduct policy investigation he was told in that writing that you had rights to an adviser to a support person to hire an attorney it's just the two different notices comments on the draft report he was able to get the names of his witnesses that he wanted the investigator to interview he was able to respond to all the statements in the draft report he had to the investigator and there's this is the one dispute the  review committee that he tried to reach out and you have in the record an affidavit from the investigator an affidavit that states that he did reach out to call them and send them into e mails and you have copies of the e mails that are in the record can i ask you could  saying that he could get represent things it did your honor and that this is attached to the it's in the record a j four eighty five and forty six and i can just show it to in his favor no i understand that on this appeal but myspace he gets the benefit of the facts i understand that your honor he is well he gets the benefits of the facts but to the extent there are documents which are integral to the complaint they outweigh the criminal complaint had been dismissed or not he knew when he knew that even question the day after the incident he knew that a month later he received a written notice of a sexual misconduct investigation he knew he was  an extensive questioning and answer session with the members of the standing review committee he presented all these defenses he presented his defenses as to why he did not intend to  repeatedly in his or argument the question of this case hinges on his intent and those intent rose intent james rosen ten had nothing to do with it she is asleep in k p s bed there is nothing she could have testified to that would have explain why he did not go in on a dare you try to explain why he thought she should have known it was him yes or since the panel the baby the factual findings having heard his so he couldn't bring those witnesses could  witnesses and i'm not sure i answered but now i know i have the language i have here and i don't know that it's exactly as clear as mud one might want but it does talk about witnesses and not other evidence in the record including those own testimony as to those intent and found him to be not credible that is exactly the type of due process hearing which should be up which is sufficient under the constitution he had a full and fair opportunity to know what the charges were against him to know what the evidence was against him to respond to it at the investigation stage and then to present a thorough argument to the  to identify himself to a row who had no reason to believe the person who began touching her was not the person she wants a bad way similarly the s r c concludes quote all sexual acts that occurred between one row were without rose consent in the view of the s r c as she was unaware that it was doa she was performing these acts with and not k p the ass r c specifically found that there was a violation based on the fact that she did not know she was in bed engaging in sexual activity with she did not consent the s r c coliseum moreover the s r c also considered those statement as to his intent and whether or not he intended to go into this room on a dare or whether it was an innocent he just went into the room gets good sleep which he now claims and having heard his own testimony as  intent they specifically find him not credible and they use the s r c uses that word so having had a full fair opportunity to present his own testimony as to his intent the s r c simply did not believe opportunity to understand here in the charges against him to respond to know what the witnesses were saying and to present his side of the story that is what the four circuit has helped those are the elements of due process that this court has held or required in student misconduct cases all those elements were satisfied in this case so i gathered from the papers that he was reline pretty heavily on the fact that he got an incorrect information from the university and later corrected and i just want to be sure i thought they both happened back in the day and you're telling me the correct information or at least a link to it as i understand it didn't get the exact policy but got a link forty six and then when did he get the incorrect i'm a fifty percent of the actual policy sent to him or to get a different link i think i think the allegation is that it was an attachment to an e mail that the long haul tulsi was attached and that was a mistake that was a university official making simple mistake which was corrected two days later what happened was he was invited to come to the outcome conference so what happens is there's an investigation the director of the office a student conduct we're ready for the outcome conference you've had an opportunity to review the backdraft report if comment on it the investigation is complete now there's an outcome conference and at that point if there is insufficient evidence for finding then then you'll tell the parties i outcome conferences tomorrow i'm a sex and also attached to that where the prior policies like he doesn't show i may say so but he responds to that he says i can't come can't come and it doesn't come and doesn't come in this w we i don't know the exam schedule your honor i'm sure it was around the time the finals are i'm not going to dispute but it succeeded to as i understand it as the whole business started in january starting january starting december when the window is getting the j five forty two since you did not come that hears what will happen you have been charged with a violation of the school's sexual misconduct policy you will be hearing will be on may thirtieth and at such and such time and it also says at that hearing that the s r c is a formal body composed of a combination of five students faculty and staff or specially trode to train the whole conferences with all parties until the seventh but you're telling me you laid back in back in january you were right and not only did we see the link back in january but the second page which is the list of rights and responsibilities yeah you're looking for the right he is specifically told that complaints against students will be reviewed in accordance with the sexual misconduct policy universities go to sexual contacts and appendix a of the policy is appendix a which are the correct may seventh with a covering letter of some sort which talked about the s r c paul process and s r c process including his right to have witnesses and there's no i don't think when you review the transcript the s r c he clearly knew what what was going he went he was prepared for the hearing he had with statements from his witnesses he was prepared he r could argue and did he had reviewed the police report including the police statements smoking marijuana campus or some like that these are special procedures that are designed for these very sensitive emotionally traumatic cases for all partisans types of proceedings thank you very much  a couple of points hey one of the five says the title nine officer or designee may request the appearance of persons from the university community who can provide substantial relevant evidence there is no procedure for the responding to call witnesses in fact where are you you know j one eighty five well i read some things it was one of these references that you gave me i think it was in the three s which does talk  calling witnesses it says it says that witnesses they will hear from witnesses it is a bit of no blake reference that they can hear from witnesses but there's nothing that says if your representation your client tried to get bring witnesses in was not allowed provide for subpoenas ok can i ask you something onto the raised witnesses statements is it inconsistent with your testimony would come completely and i want to read it usually i just want to be sure you understood my question where the statements that his is crucial it's j a two twelve the s r c did not find those explanation for and hearing the room to get some sleep to be credible and gave more weight to the interviews conducted by the police of the committee well he needed a heart of his testimony and he presented the statements as and in response a judge not as question the statements or what they would have testified i think live testimony your honor would make all the difference in the you know it is in january let me explain in january he got notice of an investigation the investigation goes through this entire process where they presumably interview witnesses then at some point in april there is a draft report that he gets to look at and make oral comments about doesn't get a copy of the draft report in no time anywhere is there a cobbling could have gotten one had he gone to the meeting he ignored the meetings says so the rules say the director of student conduct show contact the parties to schedule an outcome conference so on one day on the fifth of may he says appear tomorrow at an outcome conference and he writes her the next day and says i couldn't appear at this house on conference because i had finals i had group projects i couldn't go and so then she writes him the next day but i want these witnesses and then e mail she sent in the wrong procedures it was an attachment it wasn't a link she sent the wrong procedures she wrote review the code of student conduct which were the wrong procedures that's the code of student gondo he then asked to bring the police to the standing trial she writes it's not a trial and there is no procedure for postpone t and then the next day they send the formal charges the seventh of may setting up the conference for may thirteenth so there are six days during finals week he says i want to go to the student aid lawyer i don't have time i want to of his his witnesses is that a fair characterization that the police interview the witnesses at six thirty in the morning they came in the room they interviewed the witnesses at six thirty in the morning they wrote there's their recitation in their report and that's where it is piers it's from the interview at six thirty in the morning at my client said they asked him why would your client say something different in that it's not a question of he can really answer so you have a gloss of what was said but but he's fairly represented what's in the record is that right that that there was no you just you heard what you came we were all there together i graded well i may have got missed exactly what he represented but the witnesses were interviewed six thirty in the morning and their statements appear in the report that's that's what's in the record and you in your client saw those statements he saw the police report that's correct that's why he brought opposing statements to refute it that's that's that's correct but what i'm saying to you is that having a live toma and i'm sorry the other piece of this that was represent to us was that there had been an effort to get ahold of your witnesses and the investigator somebody said that he tried to get home eyewitnesses  didn't but they have filed an affidavit saying that they did and my windows as that's the way the record lies around them and there's an affidavit from my there's also a counter affidavit from eyewitnesses say no they never contacted us here's a copy of my inbox we never received  in this case is part of the record so there's after they these encounter affidavits as to that it's a factual dispute as to whether or not they were contacted by the investigator is it is an issue there's counteracted they was reviewing each other it's i don't want to make this into a summary judgment case because it's not but they raise it by affidavit so there's a counter have they would follow but let me just say never saw in front of the district court it was all in front of it was on her and she decided not forge it she basically said i don't really like michael well i'm asking the question trying to trying but if i could don't let me just say one thing to you you should be interested in what we want to know because we're the ones that are good to have to tell us and i and i and i i am so just saying i'm trying to do it you know think i would if i could just say one even in such in summary in summary matthews versus eldridge says and there was no matthews versus eldridge analysis in this case says that first we have to take the private funneling the government's interest including the function involved in the fiscal administrative burdens that and that the additional or substitute procedural requirements will entailed well catherine carroll the director of the title line officer who built this grand traditions of the fourth circuit is that after each oral argument we the members of the panel come down and greet counsel and we return to the bench and we call the next case and that's what we're going to right