In an extremely important decision for students accused of sexual misconduct, the United States Court of Appeals for the Sixth Circuit recently held in John Doe v. David H. Baum, et al. that when a Title IX student disciplinary proceeding comes down to a credibility determination, the accused student has a constitutional right under the Due Process Clause of the 14th Amendment to cross-examine his or her accuser. In addition, the court held that Doe’s allegations that the defendant University of Michigan credited the testimony of the complainant, Jane Roe’s all-female witnesses while dismissing the testimony of Doe’s all-male witnesses were sufficient to state a cause of action under Title IX.
Like so many cases before it, Doe involved a male and female student who met at a party and promptly had sex, which Doe characterized as consensual and Roe asserted was sexual assault. Roe claimed she had been too intoxicated to provide assent but had been sober enough to warn Doe that she was not consenting to sex, two contentions which appear to be at odds with one another. At the same time, her post-coital scramble to escape Doe’s bedroom and the alacrity with which she filed a complaint with the University adds credence to her claims. In any event, the University promptly investigated, and its investigator, having interviewed both parties as well as 23 other witnesses, deemed the case a toss-up, therefore recommending that the University find in Doe’s favor and close the matter.
Roe appealed, and despite not interviewing any students or considering new evidence, the University’s appeals panel reversed. Though it deemed the investigation both fair and thorough, it faulted the investigator for not weighing the evidence more heavily in favor of Roe. Therefore, facing possible expulsion, Doe withdrew from the University, 13.5 credits short of graduating, and then filed suit, arguing that the University was obligated to give him a hearing, including the right to cross-examine Roe and any adverse witnesses. The trial court dismissed Doe’s lawsuit, but the Sixth Circuit reversed the lower court and reinstated the case.
The Sixth Circuit held that the University must provide a student accused of sexual misconduct with a hearing before imposing serious sanctions like suspension or expulsion because when “it comes to due process, the ‘opportunity to be heard’ is the constitutional minimum.” More importantly, the court held that if the determination of culpability is predicated upon a party’s or a witness’ credibility – as it almost always is — the hearing must include the right of cross-examination, which the court called “‘the greatest legal engine ever invented’ for uncovering the truth.”
In so holding, the court rejected the University’s argument that permitting Doe to respond in writing to Roe’s written statement constituted sufficient due process. The court reasoned that limiting the right of confrontation to written commentary deprived the accused of the ability to ”probe the witness’ story to test her memory, intelligence, or potential ulterior motives.” Furthermore, cross-examination “gives the fact-finder an opportunity to assess a witness’ demeanor and determine who can be trusted,” something a written statement and response cannot do. The court did hold, however, that the accused student does not always have the right to personally examine his accuser; rather, “the university could allow the accused student’s agent to conduct cross-examination.” Under either approach, permitting cross-examination would pose a minimal burden to the University, in sharp contrast to “the significance of Doe’s interests” – namely the threat of being labeled a sex offender by the University, of being compelled to leave the school, and the potential difficulty of obtaining additional educational and future employment opportunities.
As noted, the Sixth Circuit also permitted Doe’s claim that the University had violated Title IX under the “Erroneous Outcome” theory to go forward. The court found that Doe had pled facts sufficient to “‘cast some articulable doubt’” on the accuracy of the disciplinary proceeding’s outcome based upon the University’s failure to permit cross-examination. The court also found that Doe had sufficiently alleged “a ‘particularized . . . causal connection between the flawed outcome and gender bias,’” noting that two years earlier, the federal government had investigated the University’s handling of sexual misconduct claims, and that the consequent threat of losing “millions in federal aid” if deemed noncompliant with Title IX “put pressure on the university to prove that it took complaints of sexual misconduct seriously.” That, and Doe’s allegation that the appeals panel “credited exclusively female testimony . . . and rejected all of the male testimony” was sufficient to establish at least the appearance of a causal connection between Doe’s gender and the appeals panel’s decision.
What Does It Mean?
When the United States Department of Education’s Office for Civil Rights [“OCR”] issued its April 4, 2011 “Dear Colleague” letter, setting forth guidelines for handling student sexual misconduct cases, OCR strongly discouraged schools from allowing the cross-examination of the alleged victim. Although OCR has signaled its intention to step back from its 2011 guidance, it is still surprising that the Doe decision makes no mention of it, even in the dissenting opinion. Ultimately, though, by creating a constitutional entitlement to cross-examination in Title IX disciplinary hearings, the Sixth Circuit not only significantly expanded the parameters of accused student’s due process rights, it essentially rendered that aspect of OCR’s 2011 Dear Colleague letter meaningless.
Colleges and universities should have already been providing students accused of Title IX violations with a hearing, rather than relying upon written statements, and for those public educational institutions within the Sixth Circuit, they must now include cross-examination as part of those hearings. As for those public colleges and universities that are not within the Sixth Circuit, going forward they must at least consider permitting cross-examination, for although Doe is not binding upon them, it does establish precedent from which other courts can, and very well may, draw.