nine and it doesn't matter if the reason that they're doing so is because they have a permanent ingrained bias against one sex or another because they want to avoid liability from the federal government who is threatening to yank their funding or because they genuinely believe that discriminating on the basis of sex is the right thing to do to achieve justice in a particular kind of case as the nd circuit noted in columbia university and as judge perry recently noted for the th circuit that is sex discrimination all the same and it violates  bill and i think shows us exactly how haywire things can go when schools choose to go that route at the time period in question here oberlin convicted one hundred percent of the students that dr raimondo and her title nine team sent formal process but even in cases like john doe's where the evidence overwhelmingly contradicted the finding that was leveled against him that decision cries out for an explanation because the evidence can't be what explains it well the only question restated a little bit haven't you aren't there over one hundred complaints only twenty of those were referred to investigation only half of those were actually had it here so you're only talking about ten out of a one hundred it's not so that means presumably in the other ninety complaints a lot of times the males were exonerated right again that is this potentially what happened but the question at this stage is what is the plausible to infer and is there a plausible inference that supports john doe i  here just on the same factual point i thought your complaint had an allegation to the effect in eighty percent of those cases the complainant chose not to go forward and so i under this policy statistics come from oberlin and in a sense the next system that is complainant center by by nature we it is at least plausible to infer that when they complain and says i don't want this to go any further that that's what happens and then i said the other ten percent didn't go to a formal resolution and the other option at the school is informal resolution and there to it is again at least plausible to infer that when that is what is requested that is what oberlin does so the policy requires that they discuss the expressed preference of the survivor before deciding what to do and exhibit one to our complaint recounts an article in the policy was coming out and being discussed at the school summarizing what dr rimando had been saying about it and saying that it is it is indeed up to the students to decide which of these two resolution osas it may go through so again discovery will certainly confirm one way or the other what is true but at this stage it is a least plausible to infer that the only cases that went through formal resolution are where the student asked for that and that it was because oberlin was was doing some sort of careful that in process on the front end and i think john doe's case is probably a good enough even further evidence of that because here to be found guilty of having forced someone to perform oral sex because she was too incapacitated to consent it had to be clear to him that she quote lacked the rational ability to appreciate the conscious nature of what was going on and or was physically helpless those are quotes from policy and they say likewise that being incapacitated means being unable to control your body not understanding the who the what the when the where or the why of what you were doing and there was absolutely no evidence that could have told john doe she was in that kind of a state even if she were they had eighty minutes of consensual coherent interactions i'll go to the st prong of the testers any nd probably know that thank you this goes to the nd prong as well and the reason is this that substantial departures from the evidence is itself evidence of gender bias and this was just recently clarified and i think really good detail in the hotter university case out of the nd circuit so their posture was just emphasizing what columbia university had already said and what again in equal protection context village of arlington heights said more than forty years ago which is that when you depart substantially from the standards that govern these kinds of decisions that itself is evidence of bias and i think the intuition there is if the evidence can't be what explains it there must be something else at work here is a hofstra said when you have this kind of substantial departure from the evidence you really only need a minimal amount of say pressure from the school or other kind of evidence coming from the outside so there are the plaintiffs there i'm sorry that the school hofst part is sort of an institutional production the st part of it seems to be sort of in this particular case was the result right and so i'm not entirely sure how those are connected i guess if you had a systemic pattern of cases where they were always departing from their settled you're departing from the evidence in the case if if you think well i would quibble with some of how the evidence is analyzed here maybe you say this is human nature this is just very human error this isn't evidence of bias per se but to quote hofst when the evidence substantially favors one party's version of a disputed matter but an evaluator forms a conclusion in favor of the other side without an apparent reason based on the evidence it is plausible to infer although by no means necessarily correct that the evaluator has been influenced by bias that's hofstra that's hofstra right which again is getting that from columbia university which you know again in this discrimination on general this you know village of arlington heights sort of st laid out all these kinds of principles and that we would submit is what happened here there was eighty minutes of consensual activity including making out and vachel intercourse before jane roe said about some the other systemic issues there's something there's part of this case turns on the time st like every school in the country it was experiencing the under french pressure from the federal government to come down hard on especially claims of sexual assault brought by women against men that is were the pressure that was relevant in miami university and the reason given for it there was that was precisely that that if you didn't appease the federal government schools thought they might literally lose all of their federal funding was there something specific to overland that's sort of what i was yes all right so so what happens then with oberlin is is that targeted pressure three months before the allegations against john doe are made that pressure gets directly targeted upon oberlin and they are told we are going to conduct a systemic investigation of your sexual misconduct practices and how you respond to these kinds of things has had already sort of acknowledged this fear she had said that summer that you know in her mind it was not a matter of if o c r came calling it was a matter of when so this kind of pressure that all the schools are under she was very cognizant of and as the th circuit noted you know the fact that she is the title monk or nader and therefore has responsibility for compliance at the school is reason to think that she may be experiencing that pressure in a way that others at the school don't she won the title  coordinator at the time of the hearing why she she was not no she wasn't part of the hearing pavel was she was not a part of the hearing panel know she was in charge of training everyone at the school from two thousand and fourteen actually from two thousand and thirteen before this policy was even adopted she was the coordinator and she was the corner up until again he said july st of that year now training happens in you're only at the school so on that fact alone nine of the twelve months in which that panel would have been trained would have been under her direct supervision as the title  coordinator and she continued as this supervisor of her interim replacement during the time that he was sent into formal proceedings is that right that's right so this isn't the investigative report which the issuance of which triggers that decision came out six days after she stepped down or really rather stepped up she did continue to supervise her interim replacement who again as an interim had some it's not reasonable to think she's going to come in and she's going to change everything that the only title one co under that policy had been doing for the last three years and that is the district court judge solomon was the district judge that judge all of us that's right judge solomon oliver i'm sorry yeah and he found he agreed with you i guess to the point of there was probably enough proof of erroneous outcome here but he disagreed obviously that there was enough to show the title nine bias that's the nd part of the test no what it where do you think he went wrong that i think on a couple things so i think i think probably most importantly he never actually addressed the content of dr rimando statements so the other part of the evidence in this case is that dr raimondo when she was traveling and giving presentations with a group of panelists the summer before these allegations were brought said then among other things they were talking about what they call the great middle area of cases between where someone is fundamentally incapacitated you know passed out and where someone is being chased down in an alley where the question of consent is just obvious but in  between there and in other words the vast majority of the cases that schools deal with she said i don't think it's appropriate to talk about these cases as being great areas because that discredits quote particularly women's experiences of violence so what do you i mean i i agree that that well my sense is that might be the most potentially problematic statement you know her statement that she's a feminist i don't think that's a big deal  but how do you so how do you translate that into bias in this proceeding or just generally at this school so what it does at a high level elise is it shows that when she can see use of consent if she does there are through considerations of gender and she is the one at the school who is tasked under the policy with training everyone on how to apply the policies terms of consent and incapacitation and i think one plausible reading and again there may be others but one plausible reading of this is that you know traditionally the old trope is that if a woman doesn't resist to her utmost when she is being attacked then she must have consented in some way and i think maybe which is getting out is saying that we need to get rid of that idea and i think when you go too far with that you have a decision exactly like you would be right about that person absolutely but when you say so and i think that the error though is in a case like this what i think you know what again is one plausible way she's doing this when there is any evidence supporting someone's claim of assault we have to find a way to get to  credit that otherwise we're not doing credit to their experiences of violence and that is what happened here there was no evidence whatsoever that john doe could have known she was physically helpless unable to make rational decisions for herself and yet he was found responsible and harms when are our procedures when our procedures assume that women are the only people who report we shut down that space even further so i mean that's big and i mean that doesn't sound like she's biased in favor of always finding them guilty not in is that she herself has said i bring considerations of gender to bear when i think about consent and we have a decision here that seems to reflect that so the decision itself not only because it substantially departs from the evidence but because of the way that it does so marries up with this idea again one plausible way to interpret it and and i would submit if if if you have fifty three pages of everything and no alternative explanation of what this statement could mean and they have the benefit of talking to dr rimando they could have gone to her and said what did you mean by this and then put it into a brief and said here's one other way that you could read this right and that silence i think is very telling one question before you sit down what was the role of bot used to used to this was an advocate appointed by the university yeah so so at most schools including at oberlin students who go into these processes are allowed to have an advisory and if you don't bring your own school often appoint one for you by nope don't bring your own in other words a lawyer at this time yes that is not required by federal law that students be permitted to bring  lawyer into the process but again many students you know are not able to do that john doe did not do that when he was at his hearing works at the school and is someone little bit like appointed counsel a criminal case not exactly but but so he's or this person is appointed to represent him or does the advocate do what is little is there to advise not not permitted to speak at the hearing but is there to sort of any questions that the either party has they can talk with their advisor they can take breaks having done this myself i you know typically we're listening for questions that we might be able to submit you know on when it came time comes to do that but at the hearing itself the role is is fairly limited but still pretty critical because there are times when testimony differs as it as it did here where the only critical change that anyone made was was made by jane roe and in situations like that it is very helpful to have an advise range you're talking about as a change from what she told the investigator to what she said at the hearing with respect to whether she was physically coerced in this that's correct your honor that and did the board have any calm and a close friend of hers tried to cement a note or something to the board disputing what her change was that right on the on appeal that's right honest was ill yes her best friend who she asked to accompany to her interview said like i was at the interview he st of all said like i told you something different than even she said at the interview but of note what he said as she did she never made any allegation of force and she said he asked that the hearing she was directly asked did he ask you to perform oral sex and she said no and on that if i could i was more thing that that that is the only disputed question of fact here that the board actually made a finding on whether she asked whether she was asked whether she did it and as we talk about  board have any comment and its opinion as to regarding this this alleged change in her story from what she told the investigator to what she told or do they have any comment on good morning your honors may please the court aaron her sick for happily oberlin college title nine requires colleges to adopt policies and procedures to address sexual misconduct and to administer those policies and procedures in a manner without gender say about the presentation we just heard including about the pleading standard one of the things that was just suggested is that we could have simply asked dr a mando certain number of questions well of course with a motion detector so we can't do that dr but she still who you ask about i they have not raised it is an issue in front of this court is one of the factors that you should consider more importantly that your honor the policy that is facially neutral that they did not put into the record that that we did in our motion to dismiss briefing at page thirty three of the policy says a student may choose their advisor they can pick somebody from a list of the school they can take someone who is appointed they can bring a lawyer who can act as a lawyer but can act as an advisor so this student had the opportunity to pick anybody  that he wanted it page thirty three of the policy and he so to the idea that there was some problem with the sec this person or was this person appointed by the university as the allegation i believe this person was appointed right so the university has some obligation to appoint someone who as who will work in that person's best interest i assume be a good option in other words as opposed to having him pay a lawyer but i guess i agree with that but  student is not isn't that right yes and i don't think there's any allegation that he well there's a tissue just tweet afterwards about to survivors everywhere we believe you yes your honor i don't and survivors of course can be male or female there is person who i mean i'm who who would say that might itself be evidence of bias in the in this very  it's one thing that i or one thing i'll say is there sometimes seems to be in the briefing or perhaps inadvertently in the discourse opinion kind of a silo type analysis where just focusing on one factor or one piece of evidence that they cite and saying that's not enough and then they go to the next one that's not enough and there's never sort of a sense of well let's let's look at this collectively which is what we're advocates claims that colin be a university home for say that there's some kind of sliding scale approach you don't see that in any of the case on the cases in the circuit i think you've got four cases that really matter in the circuit i think i think what he's saying and you can tell me why you think it's unreasonable is there's a certain threshold that one has to meet to satisfy the st problem and you're not even contesting that problem here but but there can be  marginal difference to the allegations the proof can suggest a degree of agree just ness that goes far beyond the showing necessary to the st prong and when that marginal difference is great enough  that difference itself can be evidence of bias in that particular proceeding i mean what's so contrary to common sense about that i think if i think that would be a departure from what this co has done and what other courts have done iran is outcome is one piece of it right we don't expect colleges to get it right every time let's suppose it's our kind suppose our precedent doesn't preclude this why why is that an on reasonable biased against this man in this in this particular case well let me so let me ask you a question incapacitation the university standard it says the individual cannot make an informed and rational decision to engage in sexual activity because in other words for this particular reason they lack conscious knowledge of the nature of the act or they're physically helpless examples of that in this are their sleep unconscious otherwise unaware that sexual activity is occurring how is that standard that here on the allegations in the complaint does a complainant lack conscious knowledge of the nature of the sexual act is she asleep unconscious unaware of the sexual activities occurring how do you how do you reconcile the record at least as they allege it with your own standard is no longer had conscious knowledge the whole point of the standard is that you're not able to give consent or not give consent because you're incapacitated so if you if you're even having that discussion it seems just completely cut against the idea that your capacity to which i've just been told confused about this the standard knowledge are you really are you really saying that this is a lack of conscious knowledge of the nature of the sexual of then after they well i mean this isn't a fifty year whatever our long encounter are you saying there was no knowledge of the nature of the event really so you're going to that's that's what the panel found number one number two we had but some people were not we're not there yet your honour's well i mean but the point is if that if that is extremely hard to reconcile with the evidence at least alleged in the complaint maybe there was a problem your honors the question on the nd prong is whether there was bias whether this was there was gender bias here there evidence of that is all about the st problem with the outcome was wrong although not all well but i think it was wrong i would add one hundred percent conviction rate now you say that doesn't matter because eighty percent of the time it doesn't go forward but my understanding of the record here is that eight or ninety percent time it doesn't go for my understanding of the record and you know you have to sort of take their complaint as you find it is that in eighty percent of the cases the complainant does not want action and so that their not the school's own judgment that's the reason it doesn't go forward we're not going to put that denominator in judge in determining whether when the university does make a decision they're being fair right nine process and if in that process students decide not to come forward i think you know they come forward but they choose not to have and take action so whatever reason i think why do you get credit for their decision not to take action you're being fair to the accused i don't really track that i would argue your honor that the title that means the title nine program is starting to weed out real complaints from from not real complaints and so i think you do give it some credit i understand ledge to be the complain that just irrelevant or together with some of these other things does that allow somebody to infer that maybe there's at least a thumb on the scale even if it's all well intentioned i don't think that's what the facts  to your honor i think if you look at miami university as an example that's a strong contrast to what we have here where they were moving everyone from complaint through investigation to hearing and a finding of responsibility we don't have those facts here i think this fits more squarely in cases from the circuit like dayton and cummins miami university in bound both by the way talk about and i'd like to talk about for a minute the idea that you need a particular arised causal connection to this to killer case what is it here that says that that we got it wrong not because we got it wrong but because of gender bias about her there is no no they don't even comment on the change in the story isn't that that would seem to be similar to bounce where the university discredits the fraternity brothers because of that relationship with the accused but they believe the sorority sisters notwithstanding a similar relationship just sort of an oddity now isn't that isn't that an oddity that the board would not even comment rather than an important are st of all they credit and discredit testimony from witnesses for both sides men and women that play men and women the reporting party in the responding party they say they don't make they don't credit her testimony regarding force they don't they didn't know that that's or that they just don't decide on that ground right well that's that's the same as not crediting i think they don't even con that i mean you know if one is assessing the credibility of a witness you know typically it's that it that too is sort of a holistic assassin and if somebody has this rather dramatic change in their story from the story that's in the complaint itself what was told the to the investigator i mean normally one might comment on that in determining whether this is a credible accusation here your honor i think the lack of comment the lack of deciding on that basis speaks volumes and it certainly is a dramatic contrast to buy a home in miami in cases like that where you're absolutely right if you credit only male testimony you credit only the reporting the reporting party or in produce the judge barrett case that the today he's entitled to an appeal shortly after the decision an appeal officer looks at the nature of the appeal in three factors and makes a determination whether the appeal should go there hearing  one hundred percent rate carry over to the appeal praveen other words as it has as there ever been appeal granted i don't hear what is the advisory that advisor particular person what what is that woman but ok so it was the dean of the university a dean of a college not the dean of the entire university well all right well a dean of what college i i i don't have that all right we can chase that down the in part because they don't address it in their appeal greece at all which to me is forfeiture of that issue is one of the ones and we can start that and should consider just on a totally different topic you know the district court also dismissed the state law claims of motion to dismiss rounds of briefing thirteen that said evan was a head fake i guess it was in the complaint or on the what i'll say about that though your honor is that those things those claims basically follow on the other side described sort of three months before i think the resolution of this case universities put on notice that it was sort of under the spotlight from o c r do you dispute any of that is that yes your honor for a couple reasons one i don't think they were under the spotlight they're one of a handful of r my colleague suggests that the dr rimando was concerned about o c r in fact what she says with the head of c r sitting next to her is we welcome that kind of investigation we're trying to do this right so to the extent guess we can agree it's in her head at the time well sure every title nine court determined it was also in their heads all of the suits challenging the right there is a bevy of these suits that push both ways at this point you know i must say that  but the read brief does seem to cherry pick some of the testimony the part about she wasn't speaking in coherent sentences and the other one about she was out of it i mean those same witnesses if you look at the totality of their evidence or saw a lot of other stuff there that would seem to be quite favorable to them and to argue to us on a twelve these six this sort of cherry picked you know she's they she said the complaint was out of it and we're going to run with that and a firm of twelve b six dismissal and that's just fundamentally contrary to what we do on two the sex and why isn't that kind of telling about you know the challenges you face in this appeal i  don't think that is what you do your honor in these cases i think even beyond even miami which are their best cases do not say that at this stage you look at how good or bad the outcome was they look at whether there was  and they don't you know but you're really not answering the question because we don't cherry pick testimony and read it in the light most favorable to the defendant that's what you're doing in your brief you look at that testimony in the light most favorable to you that's the opposite of what we're supposed to do now maybe it's not a huge deal those particular witnesses but it's just it's not what we do on twelve the sex i was not attempting to evade or oh i know i have i'm not bitter being anything bad to you it's just what my answer is is that that's your hand it's your hand yeah but but in terms of cards you know i don't know if i'd understood the the the point is that all of that goes to whether the outcome was erroneous but what we haven't had a chance to talk about here is what bias infected this proceeding in every case you've seen now miami  any of the number of cases that they would cite everyone incited in bound there was a particular ised a bias on behalf of a panel member or something in the procedure where as you point to something they believe one of the other there is none of its job is not to get it right every time its job is to be unbiased and we think it did here and the judge oliver got it right so we ask for all right thank you mr herzog we will hear you go ahead with what you i don't i don't i don't fully disagree on or i'll just say that if she did in fact welcome an o c r that was pressuring schools to resolve these cases a certain way i think that only suggest more bias in the process not less if she's already sort of on board with pressure that in other cases is evidence of gender bias i'm glad to hear overland say that the panel did not rely on an allegation of force as they said it's explicitly on page forty seven of their brief and i think that goes to again some of the other questions about the evidence of incapacity here and whether anything close to that definition was satisfied and just to start with that her allegation there of force her allegation is that she grabbed her head and forced it on his penis and she physically resisted to the point that it hurt her neck so she knew what was happening she knew she didn't want it to happen allegedly and she tried to resist it that in itself i think proves that she was not incapacitated so again panel actually had to find her not credible in order to get the result in this case and there is a lot of other evidence to showing that she fully understood the nature of what was happening and i'll just point you to one it's paragraph ninety eight it's her own inve testimony saying that the sex the vagal intercourse they were having was painful and that the reason she asked them to stop was because she was dried down there and this is when she says i'm not sober so she knows what's going on she knows it's not painful she knows why and she explains why to him well i think we're all in agreement sort of that there was a row enough to get by iranians out is the nd part of the test what was what particularized facts here tend to show it's plausible that there was gener that's what your hurdle is here so i would i would dispute st as a as a legal matter of whether there has to be something in the outcome itself showing that kind of bias and i think lynn university is probably the best example of that that bomb relied on as providing sufficient evidence of bias but here the rationale itself as divorced as it is from the actual evidence is exactly the kind of bias of evidence of bias in the actual proceeding here and again sort of to analogize it to judge bears decision there she said the strongest piece of evidence of bias was the decision to credit one side over another now someone in oberlin shoes would say well that's just pro complaining bias that's not pro it's not gender bias but it didn't there was no good basis for doing it because they hadn't seen her and so again one plausible reading even if there are others is that it was gender bias the same i would submit is true for this decision it is so far divorced from the facts that one plausible reading of why even if there are others is gender bias that is all the court has to decide and a