Over the past year, Title IX practitioners have become well-versed with the requirement in the U.S. Department of Education’s Title IX Final Rules that parties and witnesses must “submit” to cross-examination by answering all questions posed by the parties’ advisors. The penalty for refusing to answer a question is severe: all prior statements offered by that party or witness (including any pre-hearing statements included in investigatory reports or evidence) would have to be stricken from the decision-maker’s consideration. See, 85 Fed. Reg. 30026, 30349 (May 19, 2020).
Yet the Department’s standards of due process for Title IX proceedings continue to outpace how courts interpreting the U.S. Constitution understand what is required when postsecondary schools adjudicate sexual misconduct. Even the Sixth Circuit, whose decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), provides much of the conceptual foundation for the Title IX Final Rule’s grievance procedure, does not mandate limitless cross-examination at penalty of purging all prior statements.
In Doe v. Michigan State Univ., No. 20-1043, 2021 WL 728347 (6th Cir. Feb. 25, 2021), the court held that a hearing officer’s decision to not require a complainant to answer several questions concerning the complainant’s clothes and physical size did not violate the respondent’s due process rights under Baum. Rebalancing its view of due process somewhat, the Michigan State court raised the interest of a complainant in avoiding potentially harassing questions over the respondent’s strong interest in comprehensive cross-examination. Michigan State, supra, 2021 WL 728347 at * 9, citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).
For now, this decision’s impact rests on a narrow band of cases among public colleges and universities within this Circuit, such as those falling outside Title IX’s jurisdiction because they happened off-campus. But policymakers considering future reforms to Title IX should consider the Sixth Circuit’s application of the Mathews balancing test, and how the court has identified the university’s “strong interest in protecting the alleged victims” as a critical consideration in determining what process is owed. Id., at *9.
In Michigan State, the plaintiff, a medical student, challenged his expulsion from a public medical university for sexually assaulting two other students on Title IX and Constitutional grounds. On appeal to the Sixth Circuit Court of Appeals, the issue was narrowed to the due process claim: whether the university’s post-Baum hearing process provided Constitutionally-adequate protection. A three-judge panel confirmed that it did.
The underlying incident occurred in April 2016, before the issuance of the Baum decision, and was investigated by an outside consultant through a single-investigator model. In February 2019, the consultant issued a report finding the respondent in violation, and the respondent was given an interim suspension and pulled from medical rotations. The respondent appealed. The university then put the appeal “on hold” and offered the respondent the chance for a second hearing on the merits.
The specific intervening cause for a new hearing was the Sixth Circuit’s decision in Baum, which would require some form of in-person cross-examination when the outcome depended on credibility. Based on that decision, the university had updated its grievance procedure to include live cross-examination. The university decided that the respondent should have a new hearing that included these procedures.
An administrative law judge from the Michigan Office of Administrative Hearings and Rules served as the “Resolution Officer” for the hearing, which ran over three days and included live cross-examination of the complainants by the respondent’s attorney. The Resolution Officer again found the respondent in violation for his conduct alleged in the two reports of misconduct.
On appeal to the Sixth Circuit, the respondent claimed the trial court erred in not allowing him to amend his complaint to include claims that due process was violated when the Resolution Officer refused to require the complainants to answer several questions posed to them and did not make the university provide a hearing transcript of the proceeding. The respondent argued that having a hearing transcript would have made it possible for him to more clearly identify which questions should have been answered.
The court held that its decision in Baum would not require that a complainant answer all questions posed to them during live cross-examination. The panel revisited its holding that “the form of cross-examination required must allow for the defendant to probe the claimant's credibility and for the factfinder to observe the witness's demeanor under questioning.” Doe v. Michigan State Univ., No. 20-1043, 2021 WL 728347, at *8 (6th Cir. Feb. 25, 2021). But this mandate would not require that the complainant answer every question asked. The court held that the complainant’s refusal to answer “some small number of questions” during a three-day hearing was not a due process violation under Baum. Id., at *6. The court held: “There is no compelling argument that, with all the process that Doe received, forcing Roe 1 to answer questions about her clothes and physical size was necessary to vindicate his constitutional rights.” Id.
In a remarkable contrast to the U.S. Department of Education’s interpretation of the Baum decision, which provides much of the legal foundation for the Title IX Final Rules’ cross-examination requirement, the Sixth Circuit declined to require a complainant to answer every question posed as a due process requirement.
“To follow Doe's reasoning would be an expansion of Baum’s mandate for a circumscribed form of cross-examination and would open up witnesses to potential harassment at the hands of their accusers or their accusers’ attorneys.” Id., at *9.
Not only would “unlimited questioning” raise the risk of harassment, but it was not necessary for the fact-finder to gauge the witness’ credibility. Id., at *9. During all other questions asked, the Resolution Officer was able to see the complainants’ demeanor and evaluate their memories, knowledge, and potential bias. Id. The interests were simply unbalanced, particularly since “[e]ven in criminal trials, we do not expose victims of sexual assault to harassment in the form of unlimited cross-examination, and we will not unnecessarily do so in university proceedings.” Id. While the respondent’s interest in a fair process was high, and the administrative burden of unlimited questioning was low, those factors were outweighed by the university’s “strong interest in protecting the alleged victims.” Id., citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).
The court also found no constitutional deprivation where the university did not provide a hearing transcript. Indeed, it found a logical explanation for why the university did not provide a hearing transcript: the respondent never asked for one. It further did not see an explanation on the record why the respondent’s (or his attorney’s) own notes and recollections wouldn’t have sufficed for recording information about which questions were left unanswered.
More broadly, the court declined to find that due process would require providing a live transcript. While due process requires providing all of the evidence against the respondent, “there is no indication that this evidence includes the transcript of a Baum hearing.” Michigan State, supra, at *7, citing Doe v. Miami Univ., 882 F.3d 579, 603 (6th Cir. 2018).
Because the process offered comported with the Baum standards, the court upheld the trial court’s dismissal and found it did not abuse its discretion in declining to allow for an amended complaint.
Notably, while the opinion was unanimous, Judge John Nalbandian filed a concurrence suggesting that unlimited cross-examination could be necessary on due process grounds in a case where a respondent is accused of “serious sex crimes” that could result in expulsion. Michigan State, supra, at *10. Judge Nalbandian, appointed to the court in 2018, reasoned that “at some level, an accuser in a credibility contest involving allegations of a sexual crime can defeat meaningful cross-examination by refusing to answer questions that go to the heart and substance of the allegation.” Id., at *11.
To some extent, then, the concurring opinion extended the Department of Education’s reasoning in the Title IX Final Rules’ Preamble, which elevates the need to fully “submit” to all cross-examination questions over any countervailing interest in protecting accusers from potentially harassing questions. But the concurrence also proposed a test that would only muddy the waters more, suggesting that whether “an accuser's refusal to answer questions gives rise to a due process violation depends in part on a combination of quantity and quality, on type and amount.” Id., at *12.
By contrast, the Sixth Circuit’s majority declined to apply yet another balancing test atop the already complicated three-part Mathews test, leaving the issue to the fact-finder’s discretion. The Michigan State decision, for example, would not forbid a fact-finder from drawing a negative inference regarding a complainant’s credibility from refusing to answer a question, but it would also not prevent the fact-finder from determining that a complainant’s decision not to answer “victim-blaming” questions does not impugn their credibility.
As we await further guidance from the U.S. Department of Education on Title IX, we continue to track developments in the case law regarding the demands of due process for misconduct hearings. We note that the majority of Circuit Courts of Appeal do not mandate direct, in-person cross-examination through a representative, instead demanding “some form” of questioning, such as through questions asked indirectly through the hearing panel. And now the Sixth Circuit itself has clarified that its anticipated cross-examination process does not need to be “unlimited,” with decision-makers retaining the ability not to ask harassing questions unnecessary to reaching credibility judgments. This flexibility, however, is not necessarily available in a Title IX proceeding, where decision-makers may only exclude a question on “relevance” grounds or ask an advisor to rephrase it if it violates a published rule of decorum. See, Joint Guidance on Federal Title IX Regulations, “Analysis of Section 106.45: Live Hearings, Cross-Examination, and Access to Advisors” (May 22, 2020).
You can read our broader analysis of the cross-examination issue here, and SCI members can check out our Casebook and modules for more information.