The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today. The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld. The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case. The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure. Nonetheless, they have to provide a level of due process to the accused. The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”
The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties. This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing. University rules did not, in fact, require any of the parties to attend. The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing. They decided to impose a two year suspension that was later reduced to one year on administrative appeal.
Doe took his case to the District Court which found in his favor. The University could only decide based on the submissions from each party, basically one’s word against another. The Court stated that cross examination was “essential” to due process in these circumstances. The District Court also noted that the University’s code allowed for notarized statements from the accuser. Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.
The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension. The Court largely agreed with the District Court’s reasoning. The Court of Appeals set out the required process:
While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).
Both parties agreed that Doe’s property interest (not being suspended) is significant. The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.
Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.
The Court held that the cross examination need not take the form of direct confrontation. The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype. At the very least, the accuser will have to participate somewhat more actively in the hearing.
I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances: Sexual Paranoia Come to Campus, which is about this very issue. Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories. It’s well worth reading in light of this decision.