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Due process legal update

Late last month, the Department of Education’s Office for Civil Rights (OCR) rescinded the April 4, 2011, “Dear Colleague” letter, which required schools to adjudicate sexual misconduct claims under the “preponderance of the evidence” standard and ushered in a climate of aggressive Title IX enforcement in which many schools abandoned critical due process protections for accused students.

Since April 2011, at least 188 students accused of sexual misconduct at universities around the country have brought lawsuits alleging that they were unfairly treated in their schools’ adjudication processes. As I’ve noted in the past, these lawsuits typically include one or more of the following three claims: 1) denial of constitutional due process rights (at public universities); 2) sex discrimination in violation of Title IX; and 3) breach of contract.

A number of these cases have quietly settled over the past few years. But the cases that have produced opinions reveal how divided judges are over how to handle these matters. Traditionally, courts have deferred to universities’ judgment about how to handle internal disciplinary matters in all but the most extreme cases. But as these cases have proliferated over the past few years, a number of courts have begun to recognize the unusually high stakes and have held that schools must offer at least the most basic elements of a fair procedure before labeling students as sex offenders.

In one of the most significant rulings to date on this issue, the U.S. Court of Appeals for the Sixth Circuit held in Doe v. University of Cincinnati that when a case turns entirely on the credibility of the parties, the due process clause may require schools to offer an accused student the opportunity to cross-examine his or her accuser.

Many schools offer no opportunity whatsoever for cross-examination. In this case, the University of Cincinnati’s sexual misconduct adjudication process offered an accused student the right to cross-examine indirectly through the hearing panel — a process the court did not take issue with — but the student in this particular case was unable to do so because his accuser failed to appear for the hearing.

Instead, the portion of the hearing at which the plaintiff, John Doe, should have been permitted to question his accuser, Jane Roe, proceeded as follows:

[T]he Chair explained that if Jane Roe had been present, he would have asked her to “read into the record what happened and [provide] any additional information.” “The [Administrative Review Committee] would then have time to ask clarifying questions” of Roe, followed by Doe’s opportunity to ask her questions. “Again,” however, the Chair noted Roe was not present and “move[d] onto the next step”— asking Doe to “summarize what happened.” Doe challenged a number of Roe’s statements, and responded to the Committee’s questions. Following this exchange, the Chair read Jane Roe’s written closing statement into the record and invited Doe to give a responsive closing statement.

The court noted that the degree of process that is due will vary with the facts of the individual case, stating that although cross-examination is not typically required in school disciplinary proceedings, “[a]ccused students must have the right to cross-examine adverse witnesses ‘in the most serious of cases.’”

And “given the exclusively ‘he said/she said’ nature” of this particular case, the Sixth Circuit ruled that “[d]efendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.” (Emphasis added.)

The Sixth Circuit is not the only court that has recently cited the importance of cross-examination in campus sexual misconduct proceedings. In August, Judge Matthew Brann of the U.S. District Court for the Middle District of Pennsylvania held that Penn State University may have violated a student’s due process rights when, at his hearing on sexual misconduct charges, the hearing panel prevented him from asking questions about a medical exam that his accuser got following the alleged assault but only revealed to the university months into its investigation. The hearing panel called the medical report “new information” and “irrelevant,” and rejected all of the student’s questions regarding the report.

Judge Brann, noting “the importance of cross-examination when the outcome of a disciplinary hearing is ultimately dependent on credibility-based determinations,” (emphasis in original), held that “Penn State’s failure to ask the questions submitted by Doe may contribute to a violation of Doe’s right to due process as a ‘significant and unfair deviation’ from its procedures.”

And in a suit against Miami University in Ohio, the U.S. District Court for the Southern District of Ohio held that an accused student’s inability to question the witnesses against him — whose testimony was offered only in the form of written statements — may have violated his due process rights.

Other students’ cases against their universities have also moved forward in recent months, including at the University of Chicago and Hobart and William Smith Colleges, while new lawsuits — against Northwestern University, Belmont University, the University of Denver, and the University of South Alabama, among others — continue to be filed.

With the April 2011 “Dear Colleague” letter officially rescinded, and OCR signaling that it wants to be more of an ally to schools than an adversary when it comes to Title IX enforcement, universities now have more flexibility to craft fairer procedures that protect the rights of everyone involved. Still, a number of schools have already announced that they have no plans to make changes in response to OCR’s announcement.

While universities’ determination to reduce sexual assault on campus is admirable, their efforts simply cannot come — as they do, at far too many institutions — at the expense of basic fairness. As the Sixth Circuit pointed out in Doe v. University of Cincinnati, a university’s goal should be “reaching the truth through fair procedures,” which benefits not just the accused student but all parties. As the court noted, “Jane Roe deserves a reliable, accurate outcome as much as John Doe.”

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