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Cornell law professors stress importance of cross-examination and following institutional procedures in amici brief

Last week, 23 Cornell Law School professors filed an amici curiae (“friends of the court”) brief in Doe v. Cornell University, a case in which a Cornell student identified by the  pseudonym John Doe alleged that the university failed to follow its own written disciplinary procedures for sexual misconduct cases in order to deprive him of an opportunity to question his accuser, even indirectly.

Cornell’s written policy doesn’t allow parties in sexual misconduct hearings to directly question each other, but it states, “The Hearing Chair will approve in substance all questions or topics that are relevant and that are not prohibited by these procedures or applicable laws, unduly prejudicial, or cumulative of other evidence.” In other words, Cornell promises an approximation of cross-examination — one that allows the sort of real-time questioning and direct observation by fact-finders that is essential for assessing the credibility of the parties and witnesses.

Readers may remember that in FIRE’s Spotlight on Due Process report, Cornell received a higher score than any other rated institution for maintaining written policies that included a number of critically important procedural safeguards. Although it received only a B overall because it did not guarantee all 10 of the safeguards FIRE looked for, Cornell received full points for the element of “cross-examination” precisely because of the above-quoted provision promising an opportunity to have all relevant questions answered.

But the hearing panel in Doe’s case allegedly refused to relay any of Doe’s proposed questions to his accuser on key topics such as the accuser’s inconsistent statements during and about the night in question. We can’t say we weren’t warned: Back in September, shortly after the release of our report, Cornell Law professor Kevin Clermont criticized Cornell’s failure to adhere to its own disciplinary policies for sexual misconduct cases. Unsurprisingly, Clermont is one of the signatories to last week’s brief.

Doe’s complaint and the professors’ brief allege that the failure to follow written policy in Doe’s case violates Article 78 of New York Civil Practice Law and Rules, which, among other things, allows students at private schools to challenge disciplinary findings that are “made in violation of lawful procedure” and are “arbitrary and capricious.”

The professors also explain, through pages of case law, quotes from treatises, and plain common sense, why cross-examination has deservedly been called “the greatest legal engine ever invented for the discovery of truth.” Especially in cases that hinge on the parties’ credibility and the accuracy of their testimony, such as this one, cross-examination is essential for allowing fact-finders to reach accurate conclusions about what actually happened.

Otherwise, the “all questions or topics” provision is meaningless, and students actually have no right to question the other party or witnesses at all.  

Unfortunately, the Supreme Court of the State of New York, the trial-level court, found that Cornell had “substantially complied” with its policies, and it dismissed Doe’s case. It relied in part on another Cornell provision stating that “[t]he Hearing Chair, in consultation with the Hearing Panel, will determine which of the parties’ requested questions will be asked or topics covered.” The professors’ brief argues — and FIRE agrees — that this provision must be read as simply a statement that the Hearing Chair and Hearing Panel determine whether a question falls into the narrow and specifically enumerated circumstances under which a question might be disallowed, not as a grant of complete discretion to the Hearing Chair and Hearing Panel. Otherwise, the “all questions or topics” provision is meaningless, and students actually have no right to question the other party or witnesses at all.

When assessing policies for our Spotlight on Due Process report, we withheld points for cross-examination at schools that purported to allow questioning but granted total discretion to a hearing chair to reject questions. In light of Cornell’s apparent position that its policies do not, in fact, guarantee the right to ask all relevant questions during disciplinary procedures — even though they say they do — it’s clear that Cornell did not deserve the points that FIRE awarded it, and next year, another school will earn the distinction of having the best written policies for due process.

In reaching its decision, the Supreme Court also asserted that Doe’s questions were “addressed elsewhere in the investigative record.” As the professors aptly note, though, Doe’s concerns couldn’t have been addressed in the record because they pertained to inconsistencies between the record and hearing testimony.

The professors’ brief reminds the court — and the rest of us — that universities are “vested with authority to inflict life-altering punishment,” and so it is essential “that college Title IX procedures not only be fair on paper, but that they be faithfully and fairly applied.” FIRE hopes that the appellate court reverses the dismissal of Doe’s case and reaffirms the importance both of cross-examination in disciplinary hearings and of an institution fairly and consistently applying its own written policies.

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