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In flawed but ultimately helpful ruling, First Circuit recognizes limited right to cross-examination in campus disciplinary proceedings

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Earlier this week, the U.S. Court of Appeals for the First Circuit issued a ruling that delivered something of a legal victory for due process on campus, while denying any significant relief to the plaintiff himself. 

I say “something” of a legal victory because the decision — while highly significant for recognizing that due process requires schools to make some provision for cross-examination in cases of serious campus misconduct — was somewhat ambiguous about what that should look like in practice. But more on that later, after a bit of background.

The case, Haidak v. University of Massachusetts Amherst, has its origins in a volatile relationship between two former UMass students, James Haidak and Lauren Gibney. While the two were studying abroad in Barcelona, an incident of dating violence occurred about which their accounts differ dramatically. According to Gibney, Haidak grabbed her wrists, punched himself in the face with her hands, and pinned her to the bed. Haidak, by contrast, alleges that Gibney was the initial aggressor—hitting and slapping him in the face and kicking him in the groin—and that he pinned her down only in self-defense. There were no other witnesses to the incident.

Gibney filed a written complaint with the university, and the university issued a no-contact order that both Haidak and Gibney repeatedly violated by continuing to have a romantic relationship for some period of time after the Barcelona incident. Initially, however, Gibney denied that the post-Barcelona contact had been unwanted, rather than mutual. As a result, the university deemed Haidak to constitute “a direct and imminent threat” to the safety of the community and suspended him indefinitely pending his hearing, which had not yet been scheduled. 

Approximately five months later, the university finally held Haidak’s hearing, and he was permanently expelled (in part due to a prior disciplinary history involving alcohol-related violence). He then filed a federal lawsuit alleging that the university violated his constitutional due process rights both for suspending him without notice and a hearing, and for expelling him without the proper process, including allowing him to cross-examine Gibney. 

The district court ruled against Haidak in an opinion that was distressingly dismissive of the importance of due process in the campus disciplinary setting. In response to Haidak’s argument that he should have been entitled to cross-examination and the right to counsel, the court simply stated that “the First Circuit’s 25-year-old decision in [Gorman v. University of Rhode Island, 837 F.3d 7 (1st Cir. 1988)] declined to find either of these elements essential to due process in the context of school discipline hearings.”

Haidak appealed the district court’s dismissal of his case to the First Circuit. FIRE filed an amicus curiae brief in support of his appeal, arguing that the campus disciplinary landscape had changed dramatically since the First Circuit decided Gorman, and that “[a] procedure that does not offer some opportunity for real-time cross-examination, even if only through a hearing panel, is fundamentally unfair to a person whose future depends upon the decisionmaker’s credibility assessment.”

On August 6, the First Circuit handed down its ruling in Haidak’s case. The court held that, while UMass had violated Haidak’s due process rights by suspending him without notice prior to holding a hearing, the procedures employed at the hearing at which he was ultimately expelled did not violate his due process rights. The court also affirmed the lower court’s dismissal of Haidak’s Title IX sex discrimination claim.

Practically speaking, the ruling is not much of a victory for Haidak himself — the court ordered the lower court to award him “nominal monetary damages” for the improper suspension, but his expulsion from the university remains unchanged. The ruling is, however, a real step forward for campus due process in the First Circuit, which is now the second federal appellate court to recognize a right to cross-examination in the context of campus sexual misconduct proceedings. 

The court, quoting FIRE’s amicus brief, wrote that:

[W]e agree with a position taken by the Foundation for Individual Rights in Education, as amicus in support of the appellant — that due process in the university disciplinary setting requires “some opportunity for real-time cross-examination, even if only through a hearing panel.”

Admittedly, the right to cross-examination as construed by the First Circuit is narrower than the right as construed by the Sixth Circuit in its landmark Doe v. Baum decision. While Baum required the university to allow the parties’ representatives to conduct the cross-examination, the Haidak court held that the questioning could be conducted by a neutral third party:

[W]e have no reason to believe that questioning of a complaining witness by a neutral party is so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation.

The court added, however, that the third-party questioning must be meaningful:

When a school reserves to itself the right to examine the witnesses, it also assumes for itself the responsibility to conduct reasonably adequate questioning. A school cannot both tell the student to forgo direct inquiry and then fail to reasonably probe the testimony tendered against that student.

The court also noted that the UMass Dean of Students’ decision to strike a significant number of Haidak’s proposed questions could have raised due process concerns had the hearing board itself not “avoid[e]d the pitfalls created by the university” by questioning Gibney extensively on the case’s central issues.

Certainly, this is not a perfect decision. The fairest campus disciplinary proceeding would be one in which both parties were permitted to be actively represented by counsel and at which the parties’ representatives could cross-examine witnesses. Students’ own counsel can more reliably be counted on to be zealous in their representation than can a college, which cannot escape its own institutional biases. And, as Boston attorney Naomi Shatz notes, the First Circuit’s “reasonably adequate questioning” standard is not a very clear one, which may lead to “a lot of litigation over whether the school-conducted questioning in any given case was sufficient.”

But it is important not to let the perfect be the enemy of the good, and there is a lot of good in this decision. It takes a district court ruling that was totally dismissive of students’ right to cross-examination and turns it into a ruling that, while not of great use to Haidak himself, establishes that some form of meaningful questioning is essential to due process in the campus disciplinary setting, at least in cases involving “serious disciplinary charge[s].” Given that there was previously no established right to cross-examination in campus proceedings in the First Circuit, I would call this decision, on balance, a victory for due process on campus. (Also of note: retired Supreme Court Justice David Souter was a member of the three-judge panel and joined the decision.)

And while some have framed the decision as creating a circuit split with the Sixth Circuit’s Baum decision, I don’t see it that way. The fact that the Sixth Circuit says questioning during cross-examination has to be by the party’s representative, while the First Circuit says the questioning can be through a neutral third party but must still be meaningful, strikes me as a difference of degree rather than a true split.

The precedent around cross-examination in the campus disciplinary setting will develop further in the coming years as the hundreds of due process lawsuits brought by students accused of sexual misconduct continue to work their way through the courts (for example, the Eighth Circuit is currently considering the question). As always, FIRE will continue to keep you updated.

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