Last month, the U.S. Court of Appeals for the Sixth Circuit issued an opinion holding that the University of Michigan (and, by extension, other public universities in the Sixth Circuit) must provide parties with an opportunity for real-time cross-examination in campus sexual misconduct proceedings turning on credibility.
The opinion in Doe v. Baum stated that:
[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.
One of the best parts of that opinion, I thought, was language from the court suggesting that the live cross-examination might best be conducted by the parties’ respective advisors. The court wrote that “an individual aligned with the accused student can accomplish the benefits of cross-examination — its adversarial nature and the opportunity for follow-up — without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker.”
FIRE has long argued that the active participation of an advisor is an important due process protection that benefits both accused students and their accusers. Currently, most schools allow students in sexual misconduct proceedings to be accompanied by an advisor, but those advisors typically may not actually participate in the proceedings — the proverbial “potted plant” representation. Currently, only students at public institutions of higher education in North Carolina, North Dakota, Oregon, and Tennessee have the statutory right to active assistance of counsel.
Following the ruling in Baum, the university petitioned the full Sixth Circuit to review the case en banc (the case was originally reviewed, like most federal appeals, by a three-judge panel). The court denied the university’s request by letter on Oct. 11, noting that “the issues raised in the petition were fully considered upon the original submission and decision of the case.”
Now, MLive.com reports that the university “is revising its student sexual misconduct policy to include an in-person hearing where students involved in sexual misconduct investigations can ask questions of each other and witnesses.” However, it sounds as though the university will not be taking the court’s suggestion to allow advisors to do the questioning:
Details are still being worked out, but officials have indicated that students who are parties to a student sexual misconduct investigation — as opposed to their advisers — likely will be responsible for asking questions at the hearing.
FIRE is aware that many universities are anxious about allowing on-campus adjudications to become too legal in nature. When she was president of the Association for Student Conduct Administration, for example, student conduct professional Laura Bennett told the Huffington Post that “we’re not court, we don’t want to be court — we want to provide an administrative, educative process.” Texas Tech University, meanwhile, trains Title IX hearing panelists about what to do “when an attorney goes all attorney on you,” on a slide entitled “When things go awry….”
FIRE believes, however, that everyone’s interests would be best served by a policy that allows cross-examination to be conducted by the parties’ attorneys. Such a policy would be maximally responsive to the concern, noted by the Sixth Circuit, that it may be traumatic for an accused student to be directly cross-examined by their accuser. And given the criminal implications of a sexual misconduct allegation, it would also reduce the possibility of an unrepresented accused student saying something that could later be used against them in a criminal proceeding. We hope the University of Michigan will take these points into consideration and craft a policy that best protects the interests of all of its students.