case eighteen eighteen sixty nine john doe vs columbia college of chicago please the court on behalf of my name's eric rosenberg i'm a half and john doe i look at thank you for this opportunity to discuss this case which is a critical issue for college students like john doe who find district courts dismissing their title nine claims of state law claims after universities erroneous expend them based on false allegations of sexual misconduct here the district courts dismissal of those complaint neglected bedrock principles of in the bought as well as its courts roberts decision which mandate the district court construe evidence in favor of doe while evaluating columbia colleges motion to dismiss this error stems in part from the district court's acknowledgment that columbia manifest bias in favor of students who accuse other students of sexual misconduct even though columbia's policies mandated a bias free impartial disciplinary proceedings this acknowledgment provides one of the two foundation stones for reversing his district court's decision the second is found in the erroneous finding that columbia's favoritism o students did not qualify as actionable gender bias gender discrimination even though no presented plausible circumstantial evidence that columbia's view of accusing students were females who must receive preferential treatment over the male student stage cues for example after the fact how ok because for example when combined with those other gender bias evidence there were two federal investigations of columbia by the department of education's office civil rights and those were temporarily connected to the case that issue here and those issues meet or exceed the but the evidence in seventeen different courts which looked at that type of evidence and determined that that type of federal pressure qualify as triggering actionable gender bias what are the factual allegations in your  discrimination based on gender rather than discrimination based on one's status as an alleged offender or victim while there are multiple examples of gender but one  the o c r investigation which i said seventeen courts have determined to be indicative of gender bias because what was happening was at this time for a man and let's talk about your complaint that is the complaint well you are saying that the same  our complaint we have to oversee our investigations of columbia and what is happening is that the complaint five pages the complaint talk about federal pressure at the time which was if you did not  execute urt show preferential treatment to female students the federal government could take your federal funding now we have more than just the o c r complaint we have the fact that the university in this case is partnering with multiple organizations that mathis anti male stereotyping and you know if we had my way i have to stop you right there because i have a terrible problem with that argument of yours  i'll tell you why why i like nearly hosting or advertising events such as take back the night or film such as the hunting grounds signify an an male bias with sexual assault occurs much more frequently against women why would it be anti male to focus some outreach toward women and doesn't it benefit men as instances are linked to gender specific issues here so for example they link themselves to a website that can find it here people with sexual stereotypes if for example would it be different if columbia or quit putting out presentations that women should dress less provocatively and that would reduce sexual assault you can address sexual assault without vilifying any gender and title nine requires that now it may turn out that in the end those are not enough to get past a motion for summary judgment but what we need here is plausible circumstantial evidence of gender bias so we have o investigations we have the partnerships with take back the night consider all of those orders you mentioned which are all in the in the complaint are linked to state wanted to stay in front of it such as they say they are there to advance the rights of women they identify with victims as women they do not identify them as men and so as a result you could you can advance these issues without vilifying men and that's all we're saying when you partner that with the other instances in this case for example as you well city my client is physically attacked virtually attacked in writing attacked because of his gender and the district court says oh well no it's not he didn't in what you call anti male public awareness of things nothing in the area or even encouraging of this intense indicates any anti male by they oppose both women and men want an end to sexual assault and both benefit from these programs that encourage the reporting of such crimes and then of course sexual assault and think benefit from activities that limit the shame and the silence around sexual assault and all the things you're saying are true statements but they are not in the complaint there is nothing in the complaint that would suggest just there is a bias in favor of the accused it's using student against the accused didn't then you must have a breach of contract claim you're talking about the district were to acknowledging that the district court repeatedly acknowledged that there was a bias in favor of accusing students but that it was ok the district court said because it wasn't biased in favor of the gender now if that were true we're not saying it is we believe it was because of gender if it were true you must have a breach of contract claim because this talk about bias was the cause of not allowing cross examination so the court is saying there was bias in the put the contract promised an unbiased evaluation and we cited fifteen different cases from across the country that looked a similar issues but in similar cases which found that you could not dismiss a contract claim based on that type of of advice so if i could boil down our argument your honor to what it is that way the courts acknowledge there's bias we say it's gender bias because all we have to show is a plausible basis which is very low in a motion to dismiss stage but you're not allowed under the court to the court decision sided to make alternative explanations for that at this stage is what's happening you're o with all due respect as you're providing alternative explanations for our gender bias evidence that is not contained in the pleadings themselves at this point and that discovery is the process to determine whether those things exist or not discovery is the process where you would ask the student who said for example boys like joe or why i need feminism you can ask that person when you said that were you saying that because of his gender or were you saying that because he was alleged to have sexual assault someone to the person who investigation if that's in the policy ok so the policy the student code says we promise you if you're charged with sexual misconduct to an impartial investigation adjudication of your discipline and we're saying it could not have been impartial because the court's already determined it was biased another issue for example is that the policy provides allows for cross examination of accused during these hearings in our case they were not examination the school saying they don't need to consider sole discretion to decide what we're saying so discretion was violated because of the bias you're saying that yes if there's a contractual violation it's a different what i mean i think i just figure it in and i just want to hear word that so i believe i'll try to answer tell me if i'm i think i understand what your question is so the fact is is that a violation of the impartial promise does not need to be gender specific to trigger a contract violation it just needs to be you were not the columbia we're not impartial in adjudicating john doe's disciplinary proceeding and all we're saying is that the court duty a breach and causation and we're saying there was a duty to provide an impartial process it was breached because the court's acknowledging it was breached and there was a there was a damage my client was suspended to throw the school so as a result we should be able to move a summary judgment  discovery on the rest of those issues that's basically that it's so none of those were addressed and that's why i say yeah we were you're saying there's a much more detailed process that's necessary if it's a breach of contract absolutely i think right but all we're saying is that this is motion to dismiss we deserve discovery on all these issues and the claims should not be dismissed ok mr warner please the court scott warner on behalf of columbia college chicago i'm going to start you right out because setting aside the obvious answer that a district court on a motion to dismiss cannot make kinds of fact how do you respond liable for contract violation who we don't believe that's a fair characterization of the district court's opinion in fact in the first district court opinion in which the federal title lying claims were dismissed and all of the other claims except for the contract claim were dismissed what the district court said was at most there may be a showing that there was a bias in favor of victims which is not the same thing as saying there was gender bias which of course is the college's position at that time there wasn't a breach of contract claim pending before the court and it wasn't until after the initial complaint was dismissed and then an amended complaint was filed that included a breach of contract claim that the court then had to address the breach of contract claim but there was never a finding by the district court as we read the initial opinion that there actually was a pro victim as it was rather a way of saying at most this is pro victim and pro victim doesn't mean anti male and indeed the colleges procedures are gender neutral  their face with respect to the breach of contract claim what council's argument does is really ignore what the actual elements of breach of contract claim are under illinois law as the district court explained  great length and it's thorough and well reasoned decision for one student contract claims have to allege some sort of arbitrary purchase conduct in the district court found that that simply had not been alleged more to the point th leaving that issue aside for any contract claim the plaintiff has to allege a specific and identifiable contractual promise that has actually been breached and counsel hasn't done that in his briefs either in the district court or before this court it's not as though there can be some general nebulous type of language in a policy or procedure that gives rise to a contractual obligation in the case law is very clear that under illinois law there needs to be a specific and definite contractual promise and that simply hasn't hasn't happened here has not been alleged and i would also add that this is one of those situations where the plaintiff has elected to attach a lot of documentation of the complaint that's properly considered as part of the complaint and in there are many many documents that show how the college one about addressing this or an internal complaint and in fact to go to the issue of bias the documents that are part of the complaint actually show the absence of any bias in fact when the plaintiff raised a question about whether the appeals officer had some sort of a bias mind you based on a film that came out twenty or thirty years prior the college stepped in and replace the appeals officer at the request of the plaintiff similarly this is not like many other decisions where an internal hearing panel adjudicating one of these matters simply takes the complainants word on every issue over that of the respondent in fact in this situation the hearing panel did not decide that there was for all of the female complainants allegations and so the hearing panel's decision which again is considered part of the complaint it demonstrates the thoroughness with which the hearing panel evaluated the evidence evaluated the allegations and found three sort of phases to the internal investigation process the first is an investigation or an investigator gathers information those documents are included as part of the complaint then if there's a determination that there is reasonable cause to hold a hearing then a hearing panel here's the matter here is directly from the parties and then makes a decision by a preponderance of the evidence as to whether or not the sexual misconduct policy was violated so it's that middle step where the hearing panel evaluated the evidence heard from the parties and made a decision that some of the female complainants allegations were substantiated while others were not and then there was an appeal and at the appeal stage the plaintiff said i believe that the appeal officer has a bias against man the college didn't agree with that assessment but nonetheless went ahead and replace the appeal officer at the plaintiffs request which again again demonstrates the absence ensues a lot of the questions that would come up in a contradiction that's exactly right and in fact he's put himself out of court by attaching this document literally that's exactly right and to turn back to the title nine claims for a moment this case is very different from the other decisions that have been reached by other courts of appeals where there has been some finding of sufficient allegations of gender bias and the six circuit decisions and dovi baum and over says miami i think provide two very clear that that alone pressure from the o c r and even public scrutiny or public pressure is not enough something else has to tip the balance the standard is plausibility and there simply isn't enough here to raise a plausible inference of gender bias it can't just be speculation or so silly conclusions and don't be bound for example there was specific evidence that the hearing panel discounted wholesale all the testimony from the male witnesses why because they were fraternity brothers of the respond it but what the hearing panel didn't bother to mention at least as alleged in the complaint is that all of the witnesses who supported the female versus miami university is is consistent with that there were additional factual allegations that simply are not present here and the notion that the plaintiff should be entitled to discovery to raise his claims above the than a male perpetrator nothing whatsoever nothing at all and in fact there is a news article that's part of the part of the complaint and that demonstrates the care with which the college addresses these issues in that the title mind court major is quoted as saying regardless of any external pressure we have to follow our policy and procedure we're going to treat every everybody fairly that was a balanced article in fact that article even quoted an outside organization known as fire which is well known for supporting the rights of respondents that america is not the proceedings by if we get into an acronym for the foundation of individual rights and equality i believe if i'm recalling it correctly it's a third party organisation that tends to go after institutions if they feel like they're doing something inappropriate my point is they were referenced in that article which demonstrates a balanced review of what was going on there is nothing in the complaint to answer the court's question to indicate that there is an bias one way or another any anti  male conduct going on here absolutely nothing dover says miami university by contrast included an affidavit from a local lawyer who's who was able to attest that miami university and again this is just what's alleged in the complaint had a pattern and practice of not disciplining female students who were accused of sexual misconduct and there's nothing nothing like that here at all and so with respect to gender bias that that defeats the erroneous outcome and selective enforcement theories under title nine there are also two others deliberate indifference and and hostile environment the same fate befalls those claims as well here despite councils arguments to the contrary the statements from the female complainant and some of her friends that they thought the plaintiff was a rapist or had committed sexual misconduct that's not sexual harassment those were not sexual comments they were based on the plaintiff's gender rather they were based on the fact that the female complainant and her friends believed that the plaintiff sec committed sexual assault i misconduct in question just happens to be sexual in nature but there's nothing about those comments that constitute sexual harassment moreover even if for whatever reason the court decided against us on that issue there's no basis for institutional liability if the statements of the female complainant and her friends are not the conduct of the college the standard under title nine is deliberate the difference was the college deliberately and different to that conduct and once again the documents that are attached to the complaint demonstrate the steps that the college took to address those allegations of non sexual misconduct with teams when this is one of the problems with this whole issue we all have kids and some for the two girls and two boys there between two ages twenty and thirty so it's not like i'm not tuned in but it does seem almost never that some guy is going to complain that he was sexually assaulted well that's at i understand nature alone means all he has to do is get up and leave r i'm sure you don't have any example were guy who's claiming he was sexually assaulted i do it's not part of the complaint and i would note however that the one of the o c r complaints that's referenced  the complaint that is one of the o c r investigations it's there's no allegation in the complaint as to the gender of the people who were involved in the situation that gave rise to that that's all i can say it's not part of the complaint i would also know your honor to your question that the colleges procedures themselves state very explicitly that sexual misconduct can occur between individuals of any gender or the same gender so the colleges procedures on their face are gender neutral in the sense that they recognize that there can indeed be allegations of sexual assault and go into  my claims of the beach or contra claims i would only add that with respect to the other state law tort claims for the same reasons i have i've explained why we believe the title mind claims in the breach  contract claims failed or simply no basis for any of the state law tort claims either and we would respectfully ask that the judgment of the district court dismissing all claims against chlamydia college  nondiscriminatory it's been going on for decades discovery is a mechanism to address those issues that in a lot of talk about what is in the complaint and how it prove that there was no bias you see none of that in the in the debris thing they've been able to call that information out of the exhibits but that what we've called out is discrimination against plausible gender discrimination and absolute bias on the part of the university which has been acknowledged by the court repeatedly and if i could just i guess sum up impartiality is the glue that keeps our society together impartiality is what's the core of the process protect anyone who has children and walt or have siblings knows that when their parents say to them i am going to be impartial that means something to them particularly when you're judah creating a dispute among siblings but more importantly here in this case the failing of the university to provide impartiality which the court has acknowledged in multiple locations here prove that they engaged in arbitrary capricious and bad faith conduct that triggers contract liability if you're biased you cannot have engaged in it that's bad faith and it was not you that the court can't just disown multiple examples of why it is they believe the process was tainted by bias in the title nine process but then wash their hands of it when it comes to the contract place