Cross-Examination as A Constitutional Right in Title IX Disciplinary Hearings

In what is arguably one of the most significant decisions ever in the context of Title IX student disciplinary procedure law, the United States Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) has held that students in Title IX disciplinary hearings at public universities must be afforded the opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder when the case decision involves selecting between competing narratives.

The Case

Doe v. Baum, et. al., Case No. 17-2213 (6th Cir. Sept. 7, 2018), involved a typical Title IX factual scenario. Two University of Michigan (UM) students meet at a fraternity party, alcohol is involved, a sexual hookup ensues, after the sexual encounter the female student (“Roe”) claims that the encounter was non-consensual due to her lack of capacity to consent.

The male student (“Doe”) claims that Roe was not incapacitated and fully consented to the encounter. Each side had witnesses to support their narratives. Roe had female witnesses who provided evidence as to her extreme level of intoxication. Doe had male witnesses who suggested the opposite.

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The University of Michigan Title IX Process

Once Roe filed a Title IX sexual assault complaint against Doe, The University of Michigan employed its Title IX investigation apparatus. UM utilizes a single investigator model of Title IX adjudication. That means that the accused student is not provided with a separate process for investigation and adjudication.

The accused student is not provided with a hearing panel composed of neutral fact-finders. Instead, a single individual is employed to serve as the investigator, judge, and fact-finder. Once the investigator reaches a determination both parties possess the right to appeal the determination by way of a three-person appeals panel.

The Outcome of the University of Michigan Title IX Process

After a three-month investigation and after interviewing numerous witnesses, the investigator was not able to conclude that Roe exhibited outward signs of incapacitation that Doe would have noticed before the sexual encounter. In other words, due to the competing versions of what had happened, it could not be determined that it was “more likely than not” that a sexual assault had transpired. Accordingly, the investigator recommended that the administration rule in Doe’s favor and close the case.

Roe appealed. As set forth in the Sixth Circuit decision, Roe claimed that the investigator’s findings were not supported by the evidence. She requested that the university reconsider. Here is how the court described what happened next:

“The case went up to the University’s Appeals Board, and a three-member panel reviewed the investigator’s report. After two closed door sessions (without considering new evidence or interviewing any students), the Board reversed. Although the Board found that the investigation was fair and thorough, it thought the investigator was wrong to conclude that the evidence was in equipoise. According to the Board, Roe’s description of events was “more credible” than Doe’s, and Roe’s witnesses were more persuasive [citations to record omitted]. As a result, the university set the investigator’s recommendation aside and proceeded to the sanction phase. Facing the possibility of expulsion, Doe agreed to withdraw from the university. He was 13.5 credits short of graduating.”

As a result, Doe filed a lawsuit against UM asserting that the university’s disciplinary proceedings violated the Due Process Clause and Title IX. Doe argued that because the university’s decision turned on a credibility finding, UM was required to give him a hearing with an opportunity to cross-examine Roe and the adverse witnesses.

The Sixth Circuit Decision

Here are some of the highlights from the court’s decision:

“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth… Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted… So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process [citations omitted].”

. . .

“Time and again, this circuit has reiterated that students have a substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct… Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life… The student may be forced to withdraw from his classes and move out of his university housing… His personal relationships might suffer… And he could face difficulty obtaining educational and employment opportunities down the road, especially of he is expelled [citations omitted].”

. . .

“Cross-examination is essential in cases like Doe’s because it does more than uncover inconsistencies – it ‘takes aim at credibility like no other procedural device… Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives… Nor can the fact-finder observe the witness’s demeanor under that questioning… For that reason, written statements cannot substitute for cross-examination…(‘It is of great importance in the distribution of justice that witnesses should be examined face to face, that the parties should have the fairest opportunity of cross-examining them in order to bring out the whole truth; there is something in the manner in which a witness delivers his testimony which cannot be committed to paper, and which yet very frequently gives a complexion to his evidence, very different from what it would bear if committed to writing…’) [citations omitted]).”

Impact of the Decision

First and foremost the decision is a decisive rebuke to the now withdrawn April 4, 2011 OCR “Dear Colleague” letter that strongly discouraged schools from allowing the cross-examination of the alleged victim. For students at public institutions accused of campus sexual misconduct in the states encompassing the Sixth Circuit, they, when credibility is the decisive factor, now have the benefit of one of the most important due process protections available in western jurisprudence. Hopefully, other institutions outside of the Sixth Circuit will voluntarily provide the same protection in their Title IX processes. If not, maybe the courts in their jurisdictions will be persuaded by the rationale of the Sixth

Circuit decision. Either way, it seems likely that eventually the US Supreme Court will be required to weigh in on the issue of what due process tools are required to protect the rights of students charged in campus sexual misconduct cases.

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