First Circuit Rejects Live Cross-Examination of Accuser in Title IX Hearings at Public Colleges and U
December 3, 2019
The U.S. Court of Appeals for the First Circuit has ruled that public universities are not constitutionally required to permit respondents (or their advisors and advocates) to cross-examine complainants in Title IX hearings. The First Circuit's decision, Haidak v. U. Mass-Amherst, differs from a recent decision in the Sixth Circuit, Doe v. Baum, creating a split among the federal circuits. This alert explores the significance of these decisions for both public and private universities.
Haidak v. University of Massachusetts-Amherst
After UMass student James Haidak and his girlfriend, Lauren Gibney, found themselves in a physical altercation, Gibney reported the incident to the University's Title IX office. After gathering written statements from the parties, the University convened an expulsion hearing and in the interim suspended Haidak for five months. During the hearing, neither Haidak nor his attorney were permitted to cross-examine Gibney directly. Instead, Haidak submitted questions for the Hearing Board to ask Gibney, the majority of which the Board declined to ask. After the hearing, the Board found Haidak in violation of the University’s Code of Student Conduct and expelled him.
Haidak brought suit against the University, claiming that his constitutional due process rights were violated by the refusal to allow him to cross-examine Gibney. The First Circuit rejected his claim, holding that due process in the public university disciplinary setting requires “some opportunity for real-time cross-examination, even if only through a hearing panel.” The Court reasoned that when a school reserves the right to examine witnesses, it also assumes responsibility to conduct reasonably adequate questioning. In this instance, the Court found that the Board’s questioning was reasonably adequate.
Sixth Circuit's Decision in Doe v. Baum
The Haidak decision runs directly counter to the Sixth Circuit's decision in Doe v. Baum. In Baum, Jane Roe filed a sexual misconduct complaint against John Doe alleging that she was incapacitated from alcohol consumption and therefore unable to consent to the parties' sexual encounter. During the subsequent investigation, the parties’ and their witnesses presented contradictory accounts of Roe’s level of intoxication. Given these conflicting statements, the investigator recommended that the administration find in Doe’s favor. Roe appealed, and the investigator’s finding was reversed. Facing the possibility of expulsion, Doe withdrew from the University.
Doe brought suit against the University alleging in part that the school violated his due process rights. He argued that because the University’s decision turned on a credibility finding, the University was required to give him an opportunity to cross-examine Roe and adverse witnesses. The Sixth Circuit agreed and held that if a case turns on the resolution of competing narratives, “the university must give the accused student or [their] agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”
Key Takeaways
Haidak creates a federal circuit court split. While the Sixth Circuit now requires that a public university provide the accused with an opportunity to cross-examine the complainant and adverse witnesses if the matter turns on the credibility of those individuals, the First Circuit rejected this approach. Rather, the First Circuit held that while some opportunity for cross-examination must be allowed, it can be conducted by a hearing panel.
The First Circuit’s holding appears inconsistent with the Department of Education’s proposed Title IX regulations. Those proposed regulations require a school to provide for a live hearing during which each party must be permitted to ask the other party and any witnesses all relevant questions and follow-up questions. Such cross-examination must be conducted by the party's advisor of choice (notwithstanding the school’s ability to otherwise restrict the extent to which advisors may participate in the proceedings). If a party does not have an advisor present at the hearing, the school must provide them with an advisor to conduct cross-examination.
Although schools should review their hearing procedures in light of the Haidak decision, issuance of the final Title IX regulations may affect the practices schools should adopt regarding cross-examination during Title IX hearings.
The Court offered some guidance on what constitutes “reasonably adequate questioning” when schools only permit a hearing panel to question parties and witnesses. Although the Court did not offer a precise definition of this term, it favorably noted that the Hearing Board:
Questioned the complainant at length on matters central to the charges;
Probed for details;
Required her to clarify ambiguities in her responses; and
Alternated between questioning each party, ultimately questioning each of them three times. By alternating between questioning the parties, the questions the Board posed to the complainant were informed in real time by information Haidak provided.
Where schools use a hearing panel to determine whether there has been a policy violation, they should also consider soliciting questions from the parties in advance. Although a hearing panel is not obligated to relay questions verbatim, soliciting questions can provide guidance on what issues the parties believe are central to the allegations.
The First Circuit held that absent an emergency, constitutional due process requires notice and an opportunity to respond to allegations prior to an interim but long-lasting suspension. Although the Court does not detail what constitutes sufficient opportunity to respond to allegations, in these circumstances the Court noted that due process requires “something more than an informal interview with an administrative authority of the college.”
While the constitutional due process considerations outlined in Haidak are limited to public colleges and universities, the First Circuit has recognized that students involved in Title IX proceedings at private post-secondary institutions are owed a duty of “basic fairness.” This standard shares some of the cornerstones of due process protections, including notice of the allegations of misconduct that could lead to discipline. Due process and basic fairness are flexible analyses that depend upon the circumstances of each case. To determine what might constitute basic fairness or due process, courts will weigh factors such as the competing interests at stake, magnitude of the alleged violation, and likely sanctions and other consequences faced by the respondent. As such, private schools should consider incorporating the Court’s guidance into their Title IX policies, and procedures.
For further information, contact Kurker Paget LLC.