On August 6, 2019, a three-judge panel of the First Circuit Court of Appeals affirmed, in part, a district court’s dismissal of a respondent’s complaint arising from his expulsion from a public university, while vacating the judgment on other grounds and remanding for further proceedings. Haidak v. Univ. of Massachusetts-Amherst, No. 18-1248, 2019 WL 3561802, at *1 (1st Cir. Aug. 6, 2019).
This decision deepens the divide among the Circuit Courts of Appeal about what procedural due process minimums are required in student disciplinary hearings arising from sexual and interpersonal violence. While rejecting a one-size-fits-all approach mandating cross-examination between the parties, the First Circuit has now endorsed a more flexible standard by which “some” form of cross-examination is necessary for public colleges and universities, even if only through questions directed through a hearing panel, as long as the approach is “reasonably calculated to get to the truth” and performed “in a manner reasonably calculated to expose any relevant flaws” in the complaint. Haidak, at *9, 11.
While the decision is not binding on New York institutions, public colleges and universities that rely on the single-investigator model or otherwise do not provide for live questioning (either directly or through a panel) may need to revise their policies in the wake of this decision. This case shows an increasing coalescence around the idea that “some” form of questioning is a due process-mandate in student disciplinary proceedings.
New York institutions bound by Education Law 129-B will note, however, that the law’s process for applying interim suspensions matches or exceeds the due process minimums set by the Haidak court; with few appellate decisions on this issue, it is now clear that New York was ahead of the curve in designing a Constitutionally-adequate process for interim suspensions.
Applying the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Haidak court held that a “non-adversarial model of truth seeking,” whereby the parties submitted written statements of fact and did not question one another except through the hearing panel, was sufficient for reaching “critical administrative decisions” including a university expulsion. (Internal quotation marks omitted.) Id., at *8. Such indirect questioning procedures are common among public and private institutions within and outside New York State (although not mandated under N.Y. Education Law 129-B), and remain valid under this decision’s reasoning. Effectively, Haidak rejects the Department of Education’s (ED) proposed insistence on a right to party- or advocate-conducted cross-examination through its November 2018 Notice of Proposed Rulemaking (NPRM), while requiring that some type of live questioning be available, even if through the panel.
Even as it upheld the use of indirect questioning, the First Circuit found a due process deprivation in the university’s procedures for suspending the respondent pending the final determination where there were no exigent circumstances. Holding that notice and hearing should precede a suspension absent a continuing danger or ongoing threat of disruption, the Haidak court found error where the respondent was suspended without an opportunity to be heard before the suspension began. The university took thirteen days to suspend him, countering any claim of exigency, yet afforded him no opportunity to respond to the alleged violations of the no contact order. Id., at *11.
While the university did allow the respondent to respond to the charges orally and in writing after the suspension was put in place, this process was too late to serve as a meaningful opportunity to be heard before the suspension was imposed. Id., at *11. And the opportunity itself was insufficient to provide due process. Id. The key issue in imposing an interim suspension is that continued contact between the parties posed a risk to campus safety. Id. Yet the respondent had evidence that the contact was mutual and welcome. Id. The court wrote that the respondent should have been afforded something more than an informal interview to present this information. Id. While the respondent did admit to continued contact with the reporting individual, “had university officials conducted a more substantial hearing before suspending [the respondent], they would likely have discovered that they misunderstood the nature of the contact between him and [the reporting individual].” Id. As there was no emergency situation, and ample time to provide the respondent with prior notice of the suspension and an opportunity to be heard, the court found a due process violation. Id.
As such, this decision is notable as one of the few high-level appellate court decisions to define the contours of due process in applying interim suspensions. This process, it should be noted, is fully consistent with New York Education Law 129-B.
Notably, the Haidak court declined to address the due process associated with the university’s initial application of a no-contact order between the parties. The district court found that no-contact orders do not implicate a significant Constitutional interest and therefore require minimal process, and the circuit court did not disturb that ruling. Again, nothing in the lower court decision or the appellate ruling departs from New York Education Law 129-B’s procedures for creating no-contact orders.
While Haidak does not bind New York institutions, it does comport with the Second Circuit’s unpublished, non-precedential opinion in Doe v. Colgate Univ., 760 F. App'x 22 (2d Cir. 2019), which held that a private 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. Like in Haidak, Colgate’s procedure permitted both parties to submit questions to one another through the hearing body, and neither party was allowed to directly cross-examine the other. But Haidak presents a more direct challenge to the Sixth Circuit’s holding in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), as it rests on Constitutional procedural due process grounds, rather than Title IX. This sets up the possibility of a Supreme Court challenge in the coming years.
Haidak also calls into question ED’s analysis of the due process requirements underlying Title IX, as described in its NPRM. ED asserts, without evidence, that cross-examination by representatives for the parties will produce a more accurate result, citing dictum that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” But the Haidak court pointed out that this assumption rested on “anecdotal experience” rather than evidence, as it was “aware of no data proving which form of inquiry produces the more accurate result in the school disciplinary setting.” Id., at *8. In fact, the First Circuit reasoned that student-conducted cross-examination could “lead to displays of acrimony or worse,” particularly when entrusted to a novice with limited experience in proper questioning techniques. Id., at *8. Nothing about a process where a neutral party questioned witnesses and the reporting individual would create a “categorically unacceptable risk of erroneous deprivation.” Id., at *9.
While the First Circuit’s analysis of the due process attendant to an interim suspension is on all-fours with Education Law 129-B, one area where the Haidak decision may depart from New York law is on the confrontation issue left unaddressed in Haug v. State Univ. of New York at Potsdam, 112 N.E.3d 323, 326 (N.Y. 2018). There, the New York Court of Appeals held that even in the absence of direct testimony by the reporting individual, a hearing board may base its determination on the testimony of campus officials and police who spoke to the reporting individual about the alleged misconduct; that was not a substantive due process error under New York law. Yet the Haug court did not consider whether a lack of confrontation would amount to a procedural due process violation.
Haidak, however, explicitly adopts the position, offered by the respondent-side advocacy group Foundation for Individual Rights (FIRE) as amicus, that due process requires “some opportunity for real-time cross-examination, even if only through a hearing panel.” (Internal quotation marks omitted). Haidak, at *9. In practice, many New York institutions already offer this type of indirect questioning, although it is not an Education Law 129-B mandate. With the Sixth and First Circuits in agreement that due process requires “some” type of cross-examination, a hearing may soon become an express due process minimum when reaching the ultimate determination of responsibility.