The Sixth Circuit Court of Appeals recently decided Doe v. University of Cincinnati, upholding a preliminary injunction preventing the University of Cincinnati from suspending a student it found responsible for sexual assault. The decision is significant for all students facing suspension or expulsion at public colleges and universities.
In the underlying case, two students met on Tinder, then met up in person and had sex. The complainant, Jane Roe, alleged that the sex was not consensual; the respondent, John Doe, insisted that it was. The university followed a procedure that many colleges, public and private, employ: it first tasked an employee of the Title IX office with conducting an investigation in which she interviewed witnesses and gathered evidence from both sides, and then prepared a report. Following the investigation, the university held a hearing where both students had the opportunity to appear before a panel that would render a decision as to whether John Doe was responsible for sexual misconduct. During that hearing, the accused student was supposed to have the ability to present written questions to the hearing chair and request that they be posed to the complainant. Per the university’s policy, a witness who was unable to appear could submit a notarized statement.
In this case, Jane Roe chose not to appear at the hearing, and did not submit any notarized statement. In her absence, panel members considered her account of the events at issue as reported in the Title IX officer’s report, as well as accounts from various witnesses who had been interviewed by the officer, but who also did not attend the hearing. Because the complainant was not present at the hearing, John Doe was unable to pose questions to her, even by way of the constrained procedure set forth in the school’s policy. Based apparently on the complainant’s account in the report and the supportive statements of other witnesses, the panel found John Doe responsible and recommended his suspension.
None of this is unusual when it comes to Title IX hearings. It is not uncommon, in my experience, that complainants choose not to appear at hearings, and my belief is that they often make that choice with the clear understanding that the hearing panel will be hearing and weighing the accounts that they have already given to investigators. I am aware that at least one public university, the dean responsible for Title IX disciplinary cases regularly calls complainants to discuss whether or not they wish to appear or not. I am not aware of any school that requires complainants to appear for a hearing if they choose not to do so.
Here, though, the university is a public university, and it must afford its students constitutional due process before imposing significant discipline such as suspension or expulsion. (The due process rights of students have recently been discussed almost exclusively in the context of Title IX cases, somewhat to my dismay—it’s important to note that in fact students facing suspension or expulsion for other serious alleged offenses also have the rights that due process protects: to notice of allegations against them, and a meaningful opportunity to be heard in their own defense.) The Sixth Circuit, examining the circumstances of the case, concluded that due process demanded that John Doe have the opportunity to cross-examine Jane Roe, and that the panel’s decision, based upon a hearing at which it had no opportunity whatsoever to assess Jane Roe’s credibility, much less to hear her credibility tested by cross-examination, violated his rights.
The Sixth Circuit’s decision is carefully narrow. The court put significant weight on the fact that, in this case, credibility questions were particularly important because the parties gave differing accounts as to the key factual issues (a distinction previous cases, including Flaim v. Medical College of Ohio, had drawn). It also limits any right to cross-examination to the “most serious cases.” It seems clear that the court would not require universities to allow cross-examination in run of the mill disciplinary matters. Also notably, John Doe did not assert that he had the right to directly cross-examine his accuser; rather, he complained of the deprivation of the limited questioning procedure that the university’s procedures would have afforded him if Ms. Roe had appeared at the hearing. The decision does not stand for the proposition that accused students have any right to directly or personally question complainants. The court “emphasize[d] that UC’s obligations here are narrow: it must provide a means for the  panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.”
While the decision is an important holding for respondents in disciplinary matters at public colleges and universities, I continue to have concerns about whether such a narrow right to confrontation will be as consequential in practice as it is in theory. Doe v. University of Cincinnati now indicates that at least some students (in the jurisdiction of at least one circuit court) have at least some circumscribed right to confront their accusers. But respondents and their lawyers should still think through whether such confrontation is likely to do more harm than good, particularly where the right afforded is so narrow. My experience with a procedure in which students must present their questions through a third party, who may refuse to ask the questions or reword them, and who may or may not allow the student to ask follow-up questions, is that the resulting questioning does not in any way resemble the kind of cross-examination that takes place in a courtroom, and in many cases will not have the same benefit in terms of an assessment of credibility.
Finally, the type of procedure employed in this case is not by any means the worst available when it comes to due process and assessments of credibility. Many schools employ a procedure in which there is an investigation, which generates a report, as here; and then, instead of holding a hearing at which each party has the opportunity to appear, a hearing panel makes its determination based solely on the written record, without ever seeing either party in person. Whether employed at a public or private institution, that’s a process that should disturb advocates for both complainants and respondents. It is by no means an easy to task to craft a procedure that is both protective of potentially traumatized complainants and of the rights of respondents to due process—but my hope is that Doe v. University of Cincinnati can help to prompt schools to at least make sure that the decision-makers in these very fraught and consequential cases have the opportunity to assess credibility face to face.