On May 19, 2020, the U.S. Department of Education issued final regulations governing Title IX disciplinary procedures that, among other things, will require live hearings with cross-examination performed by the parties’ advisors. You can learn more about these requirements at the Joint Guidance on Federal Title IX Regulations.
Meanwhile, the courts continue to grapple with the issue of whether due process or fair process requires cross-examination for college or university students facing suspension or expulsion. While the U.S. Supreme Court has never required it, courts split on whether decision-makers need cross-examination to help them resolve conflicting accounts of alleged sexual misconduct.
It remains to be seen what impact the Final Rules will have on this case law, but there have been some interesting recent developments to share, including a case released in the Third Circuit Court of Appeals (DE, NJ, PA) on May 29, 2020, covering a private university’s obligation to provide live cross-examination. This case signals the need to take care when drafting codes of conduct to ensure that the institution and the parties understand all promises made when adjudicating misconduct.
The Second Circuit Court of Appeals (CT, NY, VT) affirmed in Doe v. Colgate University (2019) that a university’s sexual misconduct hearing did not violate Title IX when it considered hearsay evidence and did not permit the Respondent to directly cross-examine the Reporting Individuals. Instead, both parties could submit questions to one another through the non-voting hearing chair, and submit questions to the Title IX investigator. The court found nothing in this procedure that violated the parties’ rights or showed anti-male bias. Doe v. Colgate Univ., 760 F. App'x 22, 33 (2d Cir. 2019) (non-precedential); See, also, Haug v. State Univ. of New York at Potsdam, 112 N.E.3d 323, 326 (N.Y. 2018) (hearsay testimony of reporting individual provided substantial evidence to support finding of violation).
By contrast, the Sixth Circuit Court of Appeals (KY, MI, OH, TN) has carved out a cross-examination requirement in so-called “credibility” cases. Noting that the “Supreme Court has declined to set out a universal rule and instead instructs lower courts to consider the parties’ competing interests,” the Sixth Circuit will require “some form of cross-examination” in the case “when the university’s determination turns on the credibility of the accuser, the accused, or witnesses.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018).
Importantly for institutions working remotely during the COVID-19 Pandemic, cross-examination may also be accomplished in the Sixth Circuit through video conference, as long as the parties and hearing panel can assess the witness’ demeanor. Doe v. Transylvania Univ., No. 5: 20-145-DCR, 2020 WL 1860696 (E.D. Ky. Apr. 13, 2020); Doe v. Oberlin Coll., No. 1:20 CV 669, 2020 WL 1696979, at *2 (N.D. Ohio Apr. 7, 2020).
California courts have also begun requiring cross-examination in “credibility” cases, but likewise do not require in-person confrontation: witnesses may appear in person, or may be questioned through “other means” such as videoconferencing. Doe v. Allee, 242 Cal. Rptr. 3d 109, 137 (Ct. App. 2019).
In contrast to these developments, in Doh v. Loh, the Fourth Circuit (MD, NC, SC, VA, WV) declined to take up this “credibility” exception, affirming a district court decision holding that no formal cross-examination was required as a matter of due process in a campus sexual assault proceeding at a public university. In that case, the Respondent had opportunity to testify before a hearing panel and direct the panel to the Reporting Individual’s inconsistent statements and circumstantial evidence supporting his defense. Doe v. Loh, No. CV PX-16-3314, 2018 WL 1535495, at *7 (D. Md. Mar. 29, 2018), aff'd. 767 F. App'x 489, 491 (4th Cir. 2019) (per curiam, non-precedential).
The Seventh Circuit Court of Appeals has likewise declined to consider this issue. Doe v. Purdue Univ., 928 F.3d 652, 664 fn.4 (7th Cir. 2019).
Amid the rollout of the Title IX regulations, the Third Circuit Court of Appeals issued a remarkable opinion carving out a cross-examination requirement for Pennsylvania colleges and universities resting on the code of conduct itself.
In Doe v. Univ. of Sciences (2020), the Third Circuit Court of Appeals found a plausible breach of contract claim where a private university failed to provide a respondent with a live, adversarial hearing with some form of cross-examination, reasoning that a single-investigator model did not provide a "fair" and "equitable" process as required under the code of conduct. Doe v. Univ. of Sciences, No. 19-2966, 2020 WL 2786840, at *9 (3d Cir. May 29, 2020).
The court, applying Pennsylvania case law, held that a university’s promise of a “fair” and “equitable” process would have to include cross-examination. The court recognized that a private university was not subject to the Constitution's due process guarantees, but noted that such requirements were "consistent" with Pennsylvania law and jurisprudence. Id. It appears that the Third Circuit did not announce a sweeping rule along the lines of the Department of Education’s Title IX Final Rule, as much as an interpretation of contract language based on state law.
Notably, the court pointed to language in the code of conduct that it understood to guarantee this level of process: a college that promised a "fair" and "equitable" process under a contract would have to include certain requirements, including "at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers." Id. But the court declined to provide a one-size model for how that fair process would have to be designed. Id.
This case is a signal to institutions to review their codes of conduct to determine what guarantees are made under them and what those promises will mean in practice.
We all understand that, in the near future, these jurisdictional distinctions may become moot for cases falling within the relatively narrow definition of Title IX "sexual harassment" as defined in the regulations.
Still, while coverage of this split tends to inflate the differences, most campuses already allow for “some form” of questioning between the Respondent and Reporting Individual, while very few have permitted traditional trial-like confrontation. As the California Court of Appeal writes, cross-examination is “fraught with potential drawbacks,” including traumatizing or intimidating the alleged victim and “‘escalating or perpetuating a hostile environment.’” Doe v. Westmont Coll., 34 Cal. App. 5th 622 (Cal. Ct. App. 2019).
Not only is indirect or video cross-examination acceptable in the Sixth Circuit and California, but relatively few cases will rise and fall on credibility. Many college disciplinary cases are fact-specific but do not necessarily rest on credibility, as the testimony is corroborated by video, digital, or documentary evidence, or the party has already admitted conduct and the only question is what sanction is appropriate. Moreover, the Final Rules forbid the parties from directly confronting each other, and allow campuses to build in rules of “decorum” to limit potentially abusive practices or harsh questioning.
We look forward to working with our member campuses in understanding the new cross-examination rules and implementing these changes in their policies and practices.