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August 15, 2019

Federal Appeals Courts Recognize the Right to Cross-Examination in Campus Title IX Proceedings

Two federal appellate courts have now held that in campus Title IX cases involving serious alleged misconduct, a fair disciplinary process requires live hearings and meaningful cross-examination. In Doe v. Baum, the Sixth Circuit held that schools must allow either the accused student or his representative to conduct the questioning. 903 F.3d 575, 583 & n.3 (6th Cir. 2018). And a couple of weeks ago, in Haidak v. Univ. of Massachusetts-Amherst, the First Circuit “easily” agreed that “the complete absence of any examination before the factfinder [is] procedurally deficient.” No. 18-1248, 2019 WL 3561802, at *9 (1st Cir. Aug. 6, 2019). The First Circuit also held, however, that schools could satisfy their obligations through “real-time questioning” by the factfinder – so long as the factfinder is “neutral” and probes the complainant’s testimony in a manner “reasonably calculated to get to the truth.” Id. at *9, 11. For public institutions, these procedural protections are part of an accused student’s constitutional right to notice and a meaningful opportunity to be heard before impartial decisionmakers. Courts have applied similar requirements to private institutions based on Title IX, federal regulations, state law, or contractual documents.[1]


In both Baum and Haidak – as in hundreds of other lawsuits filed in the past few years – the plaintiffs were male students whose schools had found them responsible for sexual misconduct involving a female student. The stakes in such cases are high: sexual harassment or assault can affect a complainant’s access to educational programs and activities, and students who are accused of sexual harassment or assault may be completely excluded from and denied the benefits of their education, even if they are ultimately exonerated.  Governmental pressure on colleges and universities has led to campus disciplinary systems where accused students are denied basic procedural protections and are presumed guilty based on an accusation alone; complainants’ accounts are not seriously challenged, or are presumed true precisely because they are inconsistent; investigators and decisionmakers have inherent conflicts of interest; and gender discrimination is systemic.


Real-time cross-examination is critical both for the parties to explore and test each other’s accounts and for the decisionmakers to observe the parties as they testify. As courts have repeatedly acknowledged, cross-examination is “the greatest legal engine ever invented for uncovering the truth.” Baum, 903 F.3d at 581 (internal citations omitted). “Cross-examination . . . is essential because it does more than uncover inconsistencies—it ‘takes aim at credibility like no other procedural device.’ . . . Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.” Id. at 582 (internal citations omitted).


Effective cross-examination means direct questioning by the parties or their agents. In our experience, the practice used at many schools, where parties can submit written questions, school officials decide what questions to ask, and decisionmakers may never even see the parties in person – is not an adequate substitute. The written question process is artificially constrained and does not allow the parties to effectively address new points as they come up, and school officials are often trained to refrain from asking questions that probe the accusations. Questioning should take place in real time, in the presence of both the parties and the decision-makers, and should be designed to uncover the truth.


Even though the Court in Haidak did not go as far as the Court Baum, the Haidak Court insists that decision-makers must be neutral and cross-examination must be meaningful. In the Court’s words: “When a school reserves to itself the right to examine the witnesses, it also assumes for itself the responsibility to conduct reasonably adequate questioning. A school cannot both tell the student to forgo direct inquiry and then fail to reasonably probe the testimony tendered against that student.” Haidak, 2019 WL 3561802, at *9. The Court expressed grave concerns about university training materials suggesting that decisionmakers “should choose student comfort at the expense of serious examination,” which the Court called an “ill-suited kid-gloves approach.” Id. at * 9. “Even more concerning,” a university official refused to submit more than half of plaintiff Haidak’s proposed questions to the Hearing Board, “thereby preventing the Board from knowing Haidak’s proposed questions and deciding whether to ask them as it saw the testimony play out. In this manner, the university created the possibility that nobody would effectively confront Gibney’s [the complainant’s] accusations.” Id. at *10.


Ultimately, though, the Haidak Court concluded that the Board “managed to avoid the pitfalls created by the university” and conducted a fair hearing.  The Court determined that the university’s Board “questioned Gibney at length on the matters central to the charges. It probed for detail and required her to clarify ambiguities in her responses. . . . By alternating between questioning Haidak and Gibney, ultimately examining each student three times, it engaged in an iterative process in which its questioning of Gibney was informed in real time by Haidak’s testimony as the proceedings unfolded. . . . All in all, the Board managed to conduct a hearing reasonably calculated to get to the truth by allowing Haidak to be heard after Gibney testified and by examining Gibney in a manner reasonably calculated to expose any relevant flaws in her claims.” Id. at *10-11.


Colleges and universities must ensure neutral decisionmakers and meaningful, real-time probing of complainants’ testimony. Measures to ensure fair procedures and reliable outcomes in Title IX grievance procedures benefit both complainants and respondents.


[1] Since early 2018 alone, over a dozen other state and federal courts have allowed accused students to sue their schools when they were not given the opportunity to cross-examine their accusers. See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 402 (6th Cir. 2017) (holding that the cross-examination requirement is rooted in due process and legal precedent and essential to reliable results); Doe v. Pennsylvania State Univ., 336 F. Supp. 3d 441, 449 (M.D. Pa. 2018) (emphasizing “PSU’s interest in securing accurate resolutions of student complaints like the one at issue here. PSU’s educational mission is, of course, frustrated if it allows dangerous students to remain on its campuses. Its mission is equally stymied, however, if PSU ejects innocent students who would otherwise benefit from, and contribute to, its academic environment.”) (Court’s emphasis); Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 603 (D. Mass. 2016) (holding that basic fairness requires the right to confront the accuser; to present evidence at a hearing; and to have a decision made by impartial decisionmakers); Doe v. Allee, 30 Cal. App. 5th 1036, 1061-66 (Cal. Ct. App. 2019).  


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