Earlier this month, a federal district court in Michigan ordered the University of Michigan to provide a student facing potential expulsion for sexual misconduct with a live hearing at which he would have the opportunity to indirectly question his accuser by submitting questions to be asked by the hearing panel.
This ruling is a significant rebuke to the popular “single investigator” method of adjudicating sexual misconduct claims on campus, as well as to the bifurcated process by which most schools adjudicate sexual and non-sexual misconduct.
The plaintiff, who (as is typical of these cases) filed his lawsuit under the pseudonym John Doe, was accused by a fellow student of sexual misconduct in March 2018. There were no witnesses to the encounter, which Doe claims was consensual. The university used a single-investigator process to decide the complaint. Instead of holding a hearing, the university’s investigator interviewed the parties and witnesses separately and began preparing to make a decision about whether Doe violated the university’s sexual misconduct policy.
Before the investigator issued a ruling, Doe filed a federal lawsuit alleging that the University of Michigan’s procedures for adjudicating sexual misconduct claims violated his constitutional right to due process, arguing that, “in cases such as this one, where the credibility of the parties is at stake, due process requires a live hearing and cross-examination.”
The court agreed:
Without a live proceeding, the risk of an erroneous deprivation of Plaintiff’s interest in his reputation, education, and employment is significant. Additional procedural safeguards would both assist the truth-seeking process and help to ensure the protection of Plaintiff’s constitutional rights.
The particular remedy issued by the court also highlights the shocking disparity in due process that often exists between a school’s procedure for adjudicating claims of sexual misconduct and its procedure for adjudicating other claims of serious (suspension or expulsion-level), but non-sexual, misconduct.
One of the inquiries a court makes when considering whether to grant an injunction is the degree of hardship that complying with the injunction would impose on the other party. In this case, the court held that the burden of requiring the university to hold a hearing and allow for cross-examination would be low, because the university already holds hearings and allows for cross-examination in non-sexual misconduct proceedings:
The University’s Statement of Student Rights & Responsibilities, which does provide the accused the opportunity to appear at a hearing, governs non-sexual misconduct. Because the University already conducts hearings for students accused of misconduct at which they may question witnesses, requiring the University to hold live hearings for students accused of sexual assault would be neither fiscally nor administratively burdensome.
Michigan is far from alone in using a bifurcated process under which students facing non-sexual misconduct charges are provided with a live hearing and cross-examination, while students facing sexual misconduct charges receive many fewer procedural protections.
Last year, FIRE surveyed the conduct policies at 53 of the country’s top universities to determine the extent to which those policies provided students with various procedural protections. We surveyed procedures for those offenses that could result in suspension or expulsion, whether sexual or non-sexual offenses.
One of the protections we looked for was the right to meaningful cross-examination, which we defined as “[t]he ability to pose relevant questions to witnesses, including the complainant, in real time, and respond to another party’s version of events.” This included cross-examination through a third party, such as a hearing panel, so long as there are “clear guidelines setting forth when questions will be rejected.” While 20 of the 53 universities offered what we would call a meaningful opportunity for cross-examination (still a shamefully low number) in non-sexual misconduct cases, just 3 of the 53 universities surveyed offered meaningful cross-examination in sexual misconduct cases.
Students facing suspension or expulsion for allegations of serious, often violent, misconduct are entitled to meaningful due process before being found responsible. We are glad that courts increasingly seem to recognize this, and we hope that the flood of litigation in this area — more than 250 lawsuits in the past eight years — will continue to yield decisions guaranteeing students fundamental fairness and protecting the integrity and reliability of campus adjudications.