records dismissing title nine in constitutional claims after universities erroneous lee suspend or expel them based on false allegations of sexual misconduct here the district court has dismissal of those title nine due process and equal protection claims under rules the rule twelve run afoul of two bedrock legal principles the first is the district court improperly construed those thirty plus pieces of evidence of gender bias against him in violation decisions such as twomey it ball and this court's logged in decision second the district court incorrectly found that miami could exhibit bias in favor of female students who make allegations of sexual misconduct against their male counterparts like doe without violating title nine due process or the equal protection clause the district court violated these bedrock principles in part because  gender bias evidence possibly suggest gender bias could have caused his unlawful suspension from miami therefore reversal of the district court decision is warranted under this court's decisions as well as the second circuit's decision which held a title nine complaint cannot be dismissed if minimal plausible inference of discrimination is pled applying this standard to the  those gender bias evidence is necessary in part because discovery and depositions will likely expose the pretext of miami's alleged neutral explanations for its employees discriminatory conduct but while these allegedly neutral explanations may make persuasive summary judgment arguments they cannot trump the totality of gender bias evidence at the motion to dismiss stage this is partly because this evidence satisfies this court's cummings decision which states gender bias can be established via adjudicator statements university official statements or a pattern of decision making showing gender bias here we have such evidence which includes the published academic research from the adjudicator defendant rosemarie mort ward summer who rejected those appeal her research advocates or advances gender bias stereotypes as a foundation for her opinion that females must be protected from sexually aggressive men this research includes statements such as in sex men are viewed as the aggressors and the woman's role is t set limits as the keeper of consent which which could be are you arguing this point on that case your honor that would affect not the title not i'm due process and equal protection because under this court's guidelines and bias decision maker is unconstitutional so if either way so who who is the biased decision maker well the biased adjudicators by the totality evidence is the entire panel including not only one but  and others if i might what the district court did here was they look to i believe in yours your decision in the county of jackson dissent recently these are divided calloused divide and conquer position they did look at pieces individual instead of in the in this court we look at title seven helps focus our attention on title nine mean a question that your argument raises is would any person who had ever written on the topic of gender bias be automatically biased and therefore not able to be a decision maker in any of the university sexual assault  conquer world no in a totality yes when you look at the tally of the thirty pieces of evidence that piece when for example is a real concern if you're saying that anybody who's ever exhibited an academic interest in the topic of gender studies is automatically bias actually no i don't think so your honor gender studies is one thing this is a topic about sex saying men are the aggressors women are the guardians of consent if this were a boy dear they'd be strict for  cause probably however this case has more than just that we have an affidavit from from an attorney to the malloy represented twelve different male students in sexual this seems that miami in his affidavit states that miami imposed a presumption of guilt on male students based on gender based spirit gender bias stereotypes he also noted that miami is bowing to pressure from the federal government and other organizations demanding that miami increase the number of male students it finds responsible for special misconduct and very importantly he points out a situation where miami is a major bail knows of a woman who sexually assaulted a man when he was two a capacity to consent and did not discipline her the exact same scenario that is in this case in this case jane got up into the bed of my client doe to initiate sexual contact with him when he was incapacitated in miami is acknowledging that he was so incapacity he can't remember what happened did you make that claim in the district court we did where where is it in your complaint where there's selective in fort because they because the university didn't go against did go against john everybody's  summary judgment decision and we pled the facts and we played a violation of title not i think that would answer your question i hope it's not an inch or more but to wrap up these facts are just a sampling of the thirty plus pieces of evidence of gender bias that don't put forward and they present one of the elements of a erroneous outcome claim which pursuant to this court though must show that there is a plausible link between his gender bias and  out that the district court improperly determined the reason for his suspension let me step back what happened was jane said that she never told john no to sexual contact but base expel disciplined him for sexual contact initiated by her in the statement my understanding james statement is she says i kept saying stop she said it's not i think if i remember correctly he says well it'll get better if i keep doing it she said ok continue to do that then he went to the oral sex but the point being here is that when she got into bed your honor she was assaulting him under miami's code there's no doubt that he was  capacitated and they did not discipline her what they sure was that they that the throughout the thirty one totality pieces of evidence that they corrupted the scales of justice by showing preferential treatment to a female first as a the male and that's what the district court basically sent was that they did said specifically that it was ok if there was a bias shown in favor of victims against the accused that would violate both this and that but then you were going on to another point which was that the actual holding of the decision maker was different from what was in the statement right you were saying that they she's of many i'm advancing other the even if he were the judge were incorrect about that basis there are at least two other bases as to why the result was incorrect that's what i'm saying and you read like you had you have reserved five minutes you can use  good morning your honors may please the court my name is evan priestly i represent the applebee's in this matter as this case is one of many recent cases involving a student filing suit against a university others after there was a sexual encounter between two students sometimes these cases are filed by students who claim to have been sexually assaulted but they then allege the university failed to respond appropriately or properly other times like this case it involves an accused today filing suit claiming the university engaged in some sort of wrongful action by finding that student responsible for violating university student code of conduct nearly all of these cases individuals at the university are tasked with making a very difficult decision between competing stories between those two students regarding whether or not the sexual activity was consensual this however is not one of those cases here we have a written statement from a female student which under any plausible reading would support a finding that john doe engaged in sexual misconduct thereby violating the university student code of conduct in response rather than offer a competing story which would support that their sexual activity between he and jane roe was in fact consensual john doe admits that he has no independent recollection of that evening in that he can dispute nothing in her statement we submit that faced with this special scenario there's no other outcome the university could have reached other than finding john doe responsible for violating the university's code of conduct couldn't they also have found jane responsible for getting into  clearly drunk john and engaging in sexual conduct with somebody who is so drunk he can remember what was going on not in this case your honor because i jane doe statement again it's very important to read her statement in its totality if you examine her statement properly the there is no indication in or any anything from her that she is the one that initiated any sexual activity between her and  she admits that she got into bed with john doe but merely getting into bed with another individual is not the basis for finding that there was a sexual misconduct between those two in fact the university's code of conduct describes sexual misconduct which is sexual something or sexual touching or sexual intercourse with or some sort of penetration in this circumstance she says that john doe started kissing her john doe digitally penetrated her and that john doe then engage in oral sex with her after she expressly stated now they have t quote from that statement but as the case in the with the university progress didn't the university become aware that john was totally drunk and couldn't remember anything and truly became aware of it at some point i don't know when why not why not bring a disciplinary action against team because in this circumstance what we have here is john doe starting to kiss her when he was intoxicated so if jane is then therefore found responsible for getting in some sort of sexual misconduct and anyone who becomes voluntarily intoxicated could essentially use that as a defense against themselves for saying well i started kissing this person because they didn't push me off and because they  ceded to it then therefore that person could also be found responsible for getting some sort of sexual misconduct if that were the case then it would effectively chill any person from coming forward to claim that there was sexual misconduct in this case the john doe started kissing her john doe then sort of digitally penetrating her and john doe then engage in oral sex upon her all against her wishes so there was no basis for the university to institute or investigate or take any disciplinary action against jane doe so that underlying allegation and that john dill attempts to use to support his title nine claims as well as an equal protection claim fails when jane doe statement is properly examined because there is no basis  the university could or would have taken any disciplinary action against her counsel a must say one issue that concerns me is the procedural due process issue which doesn't really depend on  directly at least on treating women different from men it's just did you get enough process and this is the case that was there on out on state failure state a claim right where there's some allegations that that the decision makers were biased some allegations that the there wasn't given enough chance to prepare the witnesses for the other side were given more chance to prepare and i'm just having trouble seeing how that doesn't even state a plausible claim that you could then have some discovery with respect to know sure the guy was was drunk and can't remember anything but that doesn't mean a good lawyer couldn't come up with some arguments about what constitutes consent in the context of of activities in this university or cross the decision makers maybe there's some stuff in the research that does show a predilection towards a standard which is stricter than the standard that's supposed to be of course and all of that there's no no discovery about anything in there it's just thrown out initial point about the fact that what we have here is a statement from jane doe which would support any possible reading of that would support a finding that john doing gaijin sexual misconduct the fact that john doe admits that he cannot dispute anything in that statement it's fatal to process claim centric there's no other process the university could have provided which would multimillion changed the outcome of this claim as was discussed and why she didn't why she didn't report earlier you could ask you could undermine the credibility of it i don't know a good lawyer could do all kinds of things i'm not that kind of a lawyer but here to say that it doesn't state a claim seems group peremptory and you're saying oh no this is enough if the person is drunk than anything that the victim says is per se true and he can't change it there's no procedural process protection what we need to remember the facts that can't be the case it's not as if he had no procedural due process protections your own really was it's certainly had son who you could attaches to the you're not talking about kicking them out for cheating on a test you know talking about kicking them out for not showing up for life is talking about something that's going to maybe keep them from going to future schools i mean it's  factors that should be taken into consideration is the fact that john doe admits that he can dispute nothing that's in jane doe statement in fact a recent all of this court said schumaker vs city of hell by not disputing the charges against him shoemaker the plaintiff in that case precluded from  procedural due process claim against the city even if a due process violation of it in fact occurred when you commit a crime so drunk you don't remember and you just don't get to process is that the university saying that he gets no it's not as if university gave him no doesn't get due process because he can't remember any can't when i'm saying the other is star i'm saying that that fact is taking into consideration to determine under made these purchase orders the flexibility to do process that should be afforded unfortunately due process is a lot of times backward looking a lot of times the courts often especially in school disciplinary cases you may have due process that should be afforded a lot of times it is based upon the ultimate sanction that was imposed so if there was only a ten day suspension that was ultimately oppose the due process level conduct that was even if he could doesn't couldn't dispute it so in terms of the procedural due process just to try to be precise about a concern that i have wasn't one of the individuals in the decision making level the same person who was essentially the prosecutor and isn't that a fundamental flaw i mean normally we don't think a prosecutor can be a judge in a case there is no prosecutor in these cases your arm y university has its a board of inquiry it's just a panel there is a chair of that board who is the one who opens the the session who says you know this is what you're accused of describes you know the process that's going to unfold before them at the hearing there's no actual prosecutor any of these cases what happens is university receives a complaint university acknowledges or notices that complaint to the accused individual the ultimate only if the accused in the individual selects to have a hearing to go to a hearing and then that's presented to the board the the individual who was the chair of that board was not involved in the prior process before that she was just the chairperson or would effectively be you know someone analogous to a court of appeals panel she would have been the had been the chief judge of that panel but she was there is no prosecutor that was involved here i know counsel styles it that way but there was no one that was actually prosecuting charges against john doe it was they were said to complaint they advised him what that complaint was they brought him to that hearing to ask his side of the story and get his explanation and his explanation was you can't dispute anything that she's saying because i was too intoxicated so there was no rational prosecutor so there was no conflict roll between the chair of that hearing panel  between any roles that she may have had well one respect always the prosecutor by definition by definition i guess that's that's correct but in this case universities it would be impossible for them to separate those functions they're a singular entity they have to i'm sorry not to separate those functions from between two people to separate that from within the university itself these were separate people i mean there was it was not the person who received the complaint and did the processing and that complaint was also on the hearing panel that did not occur there was no there was no individual who was on the actual hearing panel who was a prosecutor or someone who they were noticed i'm the person they referred to miss vaughan she was the chair of the hearing panel what extent was she the person who brought up the person  dorm and make this complaint i don't know the exact sequence of the events for that your honor i don't believe that it's in the record anywhere i know that the ira did also have a conversation with john doe prior to those allegations being brought to the university's attention so i'm not sure exactly how it came to the r is attention but it was either through jane doe herself or through jane doe with one of her friends to the ira the ira was then the one that made the complaint initially but then jane doe obviously follow through and submitted her statement which support of the finding that john doe and violated the university's code of conduct through to a few of the other points on the due process claim gunner's just those two primary contentions or that he didn't receive jane doe statement till twenty four hours in advance of the hearing and they only had had forty eight hours to prepare for the hearing however as a district court noted when the actual timeline of events is set forth those two allegations don't support a due process violation the sexual conduct at issue here took place evening of september thirteenth the early morning hours of september fourteenth paragraph five of this complaint john doe admits that the following morning when he and jane doe woke up she told him that he did not stop when she requested that he not perform oral sex that two days later john doe was informed by the university that it received an allegation of sexual assault from a female student or that that he had engaged in section was kind of the female student on september the fourteenth that correspondence also identified the section of the student code of conduct that applied to those allegations approximately ten days after the initial of bents september twenty fourth john doe attended a procedural review meeting the procedural review meeting is the zines to give an accused to the opportunity to sit down with a member of the university's administration separate from anybody who was going to be on the hearing panel who was involved in the disciplinary process so the accused and can have an opportunity to sit down discuss anything about the procedure of the hearing so they know exactly what it is that's going to happen going forward what a hearing would look like what types of things they can question about whether or not they could have counsel present with them that took place on september twenty fourth at this review hearing john doe it was there that he selected to have his case heard by hearing panel that was all to my schedule approximately two weeks later october the seventh at that hearing john doe was present with counsel as is the case most university disciplinary hearing panels nationwide counsel are not allowed to participate but quickly your honor at the hearing he was permitted to give an opening closing statement to the panel ask questions of jane doe after that hearing where he was ultimately found responsible he was then given multiple levels of appeal so he had at notice of the allegations against him adequate time to prepare and multiple layers of process at the university so when there were many claims that were raised in john's complaint one was a title nine iranians outcome claim so in a couple of sentences why shouldn't we allow that claim to go forward specifically because there's no facts upon which that it could be found that there was an erroneous outcome that relies entirely on the fact that john doesn't remember what happened well relies primarily on jane doe statement which can which certainly it plausible reading would find that he engaged in sexual misconduct but the fact that he admits that he can dispute nothing in that statement i think there's no other outcome the university could have reached other than finding that he was responsible for sexual misconduct thank you you thank  assuming soon we would make out again that was her intent to get into bed to make out with with though that policy at miami does not require penetration sexual contact nonconsensual sexual contact can include kissing incapacitated person and they define their consent as being someone who is unable to control their own conduct or substantially impaired in their knowledge and they clearly he's impaired because he has no recollection of what happened with regard to judge the questions about procedural due process here those procedural due process claim cannot be dismissed because the totality of the gender bias evidence showed how he was denied an opportunity to present his side of a story before an unbiased decision maker as this court is required in the sort of one two three what you know when we do matthew's field ridge analysis the supreme court says you're not supposed to be deciding a particular case before you post to be deciding procedures that are required for a particular categories of cases so if we have a case where somebody where we're combining the  harm to the plaintiff being kicked out of school for a year with a huge ugly stigma that will go with them for most of his life that's that in that situation what kinds of procedures does that does because does the university have to provide we have this unpublished decision that sort of lays out in general terms what those procedures are basically in that situation right which which which categories of procedures that can be described in that categorical way was he denied here that procedural due process once we balance it would require an employer goes to judge moore's question it but it's a fact that you he wasn't allowed access to that he wasn't to the display proceeding recording of the hearing he was not given own hearing his own here he was not so when he does the appeal he can't listen to the audio is he you know he didn't have access to the record correct he was given is that on appeal no i did the hearing record we did we talked about you could say well under matched who's balancing when you have an appeal you should have access to the record i mean you investigation she did serve on the panel and the pay me case is not necessarily due process violation if they were more than one hat but we cited the brewer case which is a fifth circuit case that talks about whether she was the prosecutor in what sense was she the she's the one asking all the questions when that well but that isn't so very isn't that you have a hearing with an active participant the theory is that you've already decided it before you go in because you brought the charge did she bring the charge she's in charge of bringing the charge yes so you're saying the record will show that she brought the charge that she would not and whether she was active during the hearing that's a different title nine coordinator who signs off on the doctors and i don't want to i don't want to say she's not going to sit here today said she made the charge by believe the charge or has a signature on it that is your is your position then that the title nine coordinator should never be in the hearing no but a bought with her biased role in the way she you know she was quot the dayton paper for example you have the wrong procedures she's she's tainting the process with her gender bias and now you may that's different than being a prosecutor i understand that your honor but it goes to the question of what procedural things occurred during this hearing that would have caused and the bias is what caused these various procedural because what it's a pre the decision is not constitutionally allowed in this context then you have to identify what shows a pre decision one would be that she brought the charge but that's looking weaker and weaker the more you talk about it the other would be that she showed pretty decision when she says things like i bet you've done this many times is that right is she the one who said yes she's one is that so those are two separate ways in which you could argue that that she was predisposed and you're not supposed to have a predisposed to make or is the then you're either violated due process equal protection or title nine you can't have a bias decision maker in violate none of the three and that's what the district court basically said are you familiar with the with the cases which the spring court has upheld for instance an tree board that brings a claim against someone who's doing malpractise and then a month later the same board sits in judgment and they said that was ok i'm not for that case but i don't think  decided the appeal she was the one who had the publication is that men are the aggressors in sex and women are the guardians of consent that's a biased decision maker thank you for your argument the case would be submitted and would the c