In two separate decisions over the last few months, the United States Court of Appeals for the First Circuit has staked out its position on whether college and university students accused of sexual misconduct under Title IX are entitled to cross-examine their accusers. The Court in Haidak v. U. Mass-Amherst concluded that at public colleges and universities, constitutional due process does not require that the accused be given an opportunity to directly cross-examine their accuser. On November 20, the First Circuit followed Haidak with its decision in Doe v. Trustees of Boston College, finding that the “basic fairness” required in such disciplinary proceedings at private institutions does not require an opportunity to engage in any cross-examination of the accuser.
This alert explores the significance of these decisions for both public and private post-secondary schools.
Public 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 directly cross-examine Gibney. 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.
Key Takeaways for Public Universities
- Haidak creates a federal circuit court split, increasing the possibility that the U.S. Supreme Court may be asked to resolve the conflict. The Sixth Circuit now requires that a public university provide the respondent with an opportunity to cross-examine the complainant and adverse witnesses if the matter turns on the credibility of those individuals. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). The First Circuit rejected this rule, holding 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 public universities should review their hearing procedures in light of the Haidak decision, issuance of the final Title IX regulations may affect these procedures.
- The Court offered some guidance on what constitutes “reasonably adequate questioning” when a hearing panel questions 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 questioned the parties alternately, ultimately questioning each of them three times. By going back and forth between the parties, the Board’s questions were informed in real time by information shared by the other party.
- Where public universities use a hearing panel to determine policy violations, they should consider soliciting proposed 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 and defenses.
- 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.”
Private Universities: Doe v. Trustees of Boston College
Two weeks ago, the First Circuit followed Haidak with its decision in Doe v. Trustees of Boston College, No. 19-1871 (1st Cir. Nov. 20, 2019), holding that at private colleges and universities, basic fairness does not require real-time cross-examination.
In Doe, the Massachusetts District Court granted a preliminary injunction prohibiting Boston College from suspending student John Doe for a year. After an investigation by the school, Doe was found responsible for engaging in nonconsensual penetration of a female student (Jane Doe) in violation of Boston College’s Sexual Misconduct Policy. Doe subsequently filed suit, alleging that Boston College violated his right to basic fairness by not providing him with an opportunity to cross-examine the complainant in some form. In determining whether to grant Doe’s request for a preliminary injunction, the District Court relied on Haidak and ultimately decided in Doe’s favor.
On appeal, the First Circuit reversed the District Court’s ruling. The Court ruled that Doe had no right to engage in any form of cross-examination of the complainant because: (1) Doe had no “reasonable expectation” of such a procedure where the school’s sexual misconduct policy did not allow for it; and (2) “basic fairness”, the standard that applies at private institutions, does not require schools to include cross-examination in disciplinary procedures.
Key Takeaways for Private Universities
- With regard to student disciplinary procedures, Massachusetts courts defer to private colleges and universities, so long as the procedures are consistent with notions of “basic fairness.” Basic fairness does not require that private colleges and universities provide the parties with an opportunity for any form of real-time cross-examination.
- In a 2016 case, Doe v. Brandeis, the U.S. District Court for the District of Massachusetts found that basic fairness requires “some minimum level of fair play.” Basic fairness doctrine shares some of the cornerstones of due process protections, including, for example, notice of the allegations that could lead to discipline. To determine what might satisfy a basic fairness standard, courts weigh factors such as, the competing interests at stake; the magnitude of the alleged violation; and the likely sanctions and other consequences faced by the respondent.
- The procedures set forth in a private institution’s student handbook or other policies lay the groundwork for students’ “reasonable expectations” and are contractually binding on the school.
For further information, contact Kurker Paget LLC.