satisfies that proc he must show some callers will nexus between the outcome in some gender bias in this particular case the best evidence of articulable doubt would be the denial of his right to cross examine witnesses and to confront his accuser in this case did he kind of way that they set the theory because he was given the choice of a full hearing and he took the administrative road your honor that's a very good question and one that i think the factual record shows otherwise and i'll tell you why i say that and i have to get to my breach of contract claim to kind of lay the foundation for why he could not actually make that choice st he never received a copy of the he received the objective evidence in the record indicates he received a copy of the policy the sexual misconduct policy on february the th two thousand and fifteen you know why is that important it's important because when he was st summoned into the title nine investigator's office he never had a copy of the policy therefore he had no idea what his rights were the notion that he chose the hearing judge siler i think is important to understand that he didn't have the policy and couldn't understand what his hearing options were his testimony was he didn't want witnesses meaning his and he didn't want his fraternity brothers to be brought into the process and that is not the real difference between the two procedures one has witnesses and one doesn't and he served as express disclaimed the major feature of the broader hearing which is witnesses and then become part and parcel of that maybe some cross examination good readerly other important fact there is that the accuser in this case the complainant jane doe would have protests perhaps participated in the more formal hearing process the administrative hearing doesn't require her to participate in she did not participate in this case now that's important because the fact finder the underst again for me study understand how that sure had there been a formal hearing a panel hearing as it's called in this case then the the accused john doe could have cross examined or ask questions of the accuser he didn't have that right i know saying is i don't want to bring my friends into this at no point did he say he didn't want to have a chance to ask questions of his accuser and what's important about that is there was no credibility determination this court has said in dovi baum that when credibility is at stake and your honor with all due respect in the title nine analysis that followed the due process discussion the court said if the plaintiff can show that there was no right to cross examination he has at least here your honour's as there was no assessment of the accuser's credibility the testimony in the record as of the hearing officer mr o'connell call having any conversation with the accuser the title nine investigator dr milliken is the only person that actually interviewed the accuser and the accused now i want to circle back to the title nine claim because i also realize i have to prove to you that there is evidence of bias and i want to get i want to get to that would seem like a pretty big hurdle to saying there is an erroneous outcome here your honor he did not admit to volume the policy in the best evidence of that is in the record seventy five dash one that is the investigative summary that was prepared by d alcide counsel in in that summary in the very st page there's a heading disputed facts this is prepared after admitting interviewing both the complainant and the accused and there were two key disputed facts and then a fight on the cover of that document one whether valuable sex occurred and two whether oral sex occurred but digital penetration but you're that's a violation of policy correct it is a violation of policy if it was without consent and what the record shows is that this particular couple john doe and jane doe would engage in that behavior before and there was no evidence that in that particular encounter there was a complete absence of consent but what's important is the hearing officer did not rest his decision on that issue he rested his decision as well on whether there was a badge and all sex how do you say that because i do think this is an important station and i want to ask your friends on the other side about i sort of on the record is your client specially conceding digital penetration or you're raising a question about conceded as i read that opinion it doesn't a i don't think it's clear really either way i agree that the hearing officers opinion is less than clear on which of the alleged violations he actually focused his  his decision on i agree with that but it's important that he discusses the vagal sex the oral sex and chooses to believe the complainant over the accused without making an independent credibility assessment that's what i think is important here there is no evidence that he actually assessed the credibility of the accuser on whether a badge and all sex took place or oral sex took place now but it's so so so so suppose we go back to the digital penetration and  that's not as contested maybe there's some question about consent but hearing officer would otherwise be within his rights to find that to be a violation and to punish your client accordingly that setting aside these other two disputed matters there was a arguably least one violation that may be true your honor however the final disposition the sanction in this case could have been different and we don't have a way to measure what the hearing officer might have done had he not also found vagal sex and oral sex took place it's important he found that both of those things additionally took place when he sanctioned and suspended my client i want to turn to the just if it was just the one for penetration not the other you're saying a bit lower penalty it's possible it is hard to say because the hearing officers opinion does not distinguish the various acts or does or make a conclusion that his final recommendation is sanction is based on one versus another as the university have a sort of we have the sentencing guidelines i'm not encouraging them to adopt a thing like that but do they have a scorecard a slate of sort of punishments that typically correspond with certain kinds of conduct know your honor there's nothing akin to sentencing guidelines in a case like this i want to turn to the breach of contract claim as well the breach of contract claim is based on the fact of the case western did not follow its own policy in this case it's important to understand that when an accused is brought in he has a right to know what he's accused of golf now the facts leading up to mr doe coming into the title nine court metres office or as follows he receives a calendar invite from the secretary for the title nine coordinator it says nothing exactly about  realizes he's a time one coordinator but it's not clear whether he's being summoned as an accused or d a witness in another case or for some other purpose he's just told to go there he does at that time he's not given a copy of the policy the policy would have told him and could have been reviewed by dr millikan the policy says you do not have to make statements it's akin to a right to remain silent for lack of better phrase it also says you have the right to a support person with you during that initial inquiry he was not afforded that right the record indicates that during his conversations with dr millikan at one point he was crying in the fetal position on her office this was a very traumatic of that and he was denied the right to have a support person in any sense on top of that and without having any idea why he was there he couldn't prepare in that same theme of being unable to prepare a lead up to the hearing judge givens you had commented about the time between receiving the policy in the hearing and in the week span there what's also important is he didn't have a chance to review the file before the hearing except for that day the day before the hear the day of the here he had tried to make arrangements beforehand to dr milliken's office and review the file he went there as agreed and she wasn't there and he was unable to review the file at what time did your client decide that he wanted to have a full fledged hearing and a right to cross examine was it after all this was over or the day after dr american to him or the next week or whatever your honor he never communicated with case western that he wanted to have a quote unquote panel hearing i don't think he understood exactly what the distinctions were but here's another boring part about that whether he wanted a panel hearing or not doesn't matter because the case western policy says a panel hearing is required where are the complainant once it and there has to be a dispute about core facts and seventy five dollars dash one is the best evidence the case western itself considered to be a dispute over core facts that is whether bajan all sex occurred or oral sex occurred i realize i'm running against my twelve minutes thank you  please the court plaintiff told the district court that he could satisfy the st element of his title nine discrimination claim by pointing to the absence of cross examination and to this court's opinions in dover says bomb in dover says the university of cincinnati that argument fails for three reasons st unlike the plaintiffs in those other cases point of here had no constitutional right of cross examination because case western is a private university the supreme court in this court has been quite clear  process rights including rights of cross examination belong to private actors against the government and not against other private actors apply balm here would cross that line and be in on warranted expansion of constitutional rights into purely private matters so i'm i would defer to judge givens a little bit who knows the case quite well the bomb i think centered its due process analysis on the fact that sometimes facts are contested and the best way to test contested fa cross examination why isn't that principle just as a principle equally true of the to the it may be the last minute whether it may be the best way is not the issue when the constitution is not involved there and i can't recall the case right now but the court in this role is not an advocate for best practices because there's no constitutional imperative there is the right only whatever is under the policy in his judge siler said in my my nd reason that this argument fails is of handling these kinds of cases in a complete denial of cross examination might show either a problem in one case or a more systemic problem so it seems like at least relevant to the outcome and if there's a contested case maybe the reasons  by implication some settings some cross examination it's possible that in some other case it would your honor but in this case of course we know that the plaintiff chose the administrative process it provided for no questioning of witnesses who start of the more elaborate board procedure that would have allowed for witnesses so whatever right point of might have had otherwise constitutional or otherwise he waived it and he similarly failed of to take advantage of the available process by failing to internally appeal the finding of sexual misconduct rd and you to their point about cross examination being the best way perhaps to determine the truth even in a public university setting even when the constitutional right is in play the cases make clear that there is no right of cross examination when critical facts as to the misconduct and emitted by the accused and here it's important to note that plaintiffs presented no argument or evidence to the district court denying any of the sexual misconduct that's an argument he's making  appeal but there was no evidence or argument submitted to the district court on that point and of course the  record that's correct the record also shows of course the fact that whether he denied well violation of policy that's right there's no evidence that this whole dispute about which kinds of sex he did or did not that he engaged nonconsensual sexual intercourse under the policy he admits he knew jane was uncomfortable with the sexual activities that they had previously engaged in and he said quote i understood she did not want to have oral sex or sex of any current he admits that that night she was pretty intoxicated and not capable of consent he admits that he nonetheless did as he had done before and digitally penetrated her and perform oral sex on her as to the question of what oral sex there is some dispute because of course the term oral sex is used whether ma performing oral sex or receiving oral sex that is cleared up by the way in the deposition in which he says he says he did not have her perform oral sex on him but he does admit that he performed oral sex on her which he just acknowledged in his statement he knew she opinion of the hearing officer mr rader doesn't really distinguish mentions on the facts section mentions all this conduct and then when it sort of meets out the punishment it doesn't really distinguish between these least by my reading w what i'm a little i'm not sure what to do with all that what i would point to is the the decision mr o'connell's statement at no point in either discussion did you or jane indicate that jane had given clear consent for either active oral penetration or vegetables so he's poignant that there is no consent at all for any of this conduct and that's exactly of course what the plaintiff himself had admitted to that she was not capable of giving consent the mission causes for the appellant i mean i understand the difficulty on the other hand it strikes me there's just something very unappealing made an additional arguments about cross examination in his reply brief in here this morning that the administrative process that plaintiff shows should have never been an option under the policy again plaintiff never raised that argument in the district court and therefore can't raise  it you typically go the other route again this is what plaintive explicitly said that he wanted he wanted this process and even if you had a contractual rights of the other process and you could have chosen it he certainly was  of blindsided by these allegations and kind of made a rash decision without a support person there i am been sent to explore that when i get to the contra claim but i will briefly address it now since you've raised it your honor of course and that is this that there's nothing in the policy that puts a mandate on the university to tell him about the rights that are in the policy and furthermore the point of his not cited any authority that one party to a contract has to tell the other party what his rights are under the contract and in fact of course the law is exactly the opposite when a party except it's a contract which plaintiff told the district court i accepted this contract and then he sued on it when a party accept the contract he's conclusively presume to know what that contract sits  there is a breach of contract claim here so either he gets that either he's a party to a contract or he has no claim whatsoever frankly i'm happy either way i don't the title nine claim which is fundamentally is a gender discrimination claim and there's no evidence to support gender discrimination here by anyone universities are entitled to a presumption of impartiality absent a showing of app's actual bias judge gibbons i believe you wrote that in dover says cummins and for supposed evidence of actual gender bias in this case plaintiff relied in the district court on dr millikan's dissertation but the eighty eight page dissertation is from beginning to end all about consensual sex it's all about the causes and effects of college women choosing consensual casual sexual risk to the policy which maybe goes more to breach of contract or also to title nine does the university or standard policy if someone is accused of brought into the remind them of a contract that they agreed to i guess what they did and rolled  university some time before because that's the gist of the argument is not that may be agreed to at one point someone unknowingly and we will be dual all people are contracts but that he wasn't in the specific circumstance he wasn't or reminded of his rights i'm glad that you raised it again in the sense that the plaintive tat obviously knew from the record it's clear that he knew there was a policy during the process certainly maybe not before the st meeting i can't say if he knew for sure although he did say he was aware of the i think in the pleadings even in his complaint that he was aware of a pile of sexual misconduct policy when he unrolled in the st place and then he had it and he saw it as to the changes to it subsequently it's not clear but during the process of talking to  he certainly became aware that there was a policy because they talked about the policy and here's what he testified he said he didn't ask for a copy because it wasn't important to him so i can't say much more than that other than the plaintiff in this case at every stage along the way gave up whatever rights you might have had back to the gender bias just the dissertation does not show any any bias by dr millikan and in dover says miami this court found that actually researching male sexual assault against women did not show that the researcher had a bias against men so surely her research in consensual sex didn't if anything it shows the opposite it's also dr milliken was fully aware of the fact that college women do increasingly choose casual sex so there's no bias towards men or or any bias towards assuming that men force themselves on willing women plainest argument boils down to a circular one in which he simply alleges gender discrimination points the things he didn't like about the investigation and then concludes that must have been because of gender discrimination but what's missing is any actual evidence of gender discrimination here and actual evidence that anybody treated plaintiff any differently because he was a man in fact the record here shows exactly the opposite  similarly situated woman who had been accused of performing sex against the will of a male who had been incapacitated and the consequence for that woman in that case was even harsher than the one for point there's simply no gender bias certainly not by d millikan and in any event dr milliken was not the decision maker mr o'connell was and he was no mere cat's paw the record shows that contrary to what my friend has said the record shows that that per his usual practice mr o'connell reviewed the information provided by both parties and signed off on by both parties and met individually in person with both of them the put the punishment of a different at the opinion turned only digital penetration and not included discussion of other acts that may or may not have occurred there's nothing in the record to say one of your honor's far as i know but the reality is that for that that mr o'connell concluded that all the sexual acts were performed without consent and therefore were a violation of the policy and may i also say that the district court made a specific factual finding the mr o'connell made it that credibility determinations where there were disputed disputes over the the sex made that credibility determination independently and that of course is only reviewable for clear clear air clear air factual findings on the contract as i mentioned the law is exactly the opposite as to saying mandate they have to give him a copy of the policy but as i said he knew full well that there was a policy and he also of course knew exactly what the complaint against him was he got a calendar invite to meet with the sexual misconduct investigator with the title nine sexual misconduct investigator what did he do when he got that he wouldn't talk to jane so he knew what it was about and then he got a no contact directive that said you're being you're coming to me with a sexual misconduct investigator and by the way stay away from jan he knew exactly what it was about and he certainly knew what is about as the questioning went on again there is no breach of contract by failing to provide a board hearing that was not raised in the district court and it's simply not true and because plan to fail to prevent present a district court with any evidence to support his claims of erroneous outcome at all of gender discrimination based erroneous outcome or a breach of contract particularly given the deference to be shown case western the panel i want to start where my friend left off with what the contract requires and i'm looking at page fifteen of the of the policy of the contract it says that among the interim remedial actions or i'm sorry the interim actions of the university will take there are three  c the st notify the responder to complain has been made against them the nd to provide a copy of the university's sexual misconduct policy to both parties it's in the contract that they're going to do this it's undisputed that they didn't do it and they were the th the hearing was on february th these interviews were taking place before he ever got the policy in the policy again it says he has the right to a support person and the right to not make statements he had no idea he had those rights i want to talk about the gender bias issue and it was raised when my friend dr milligan in no other type of one case has or ever been anything like this where the title nine investigator wrote a doctoral dissertation within a year of conducting this investigation that focuses on the sexual risk taking of college aged women but typically when they're taken advantage of by socially extroverted confident males my clients a fraternity brother in this particular case milliken made credibility determinations by inserting her own judgments into the investigative summary that it looked and sounded like he was trying to control jane do those are not the kinds of things you expect to see from an unbiased and neutral investigator you think it is better to have somebody who is that know anything about the field like having a math professor have the interviewer or  professor somebody like that rather than someone i guess that you have so something like that your honor respectfully i think that in a case like this it does make some sense to have someone who's familiar with the field but not someone who's demonstrated a history of viewing one side in favor of the other and i think that's what the dissertation shows and i think it's evidence by the way she's author of her report on top of that john doe testified in his deposition that her questions were accusatory and were leading and that she tried to get him to quote skip steps in the process and that gets us back to the hearing choice the administrative hearing versus the panel hearing what we're asking this court to do to give mr doe the panel hearing that he deserves the panel being the jury he's presented enough evidence to show that his contract with case western was breached that he has articulable doubt regarding the