Seattle Attorneys Blog
The right to cross-examine the complainant in Title IX disciplinary proceedings has been a controversial issue for several years. In a recent case, a New York appellate division annulled a determination that an accused student should be suspended after the decision-maker relied upon the complainant’s statements in making its determination when she was not present at the hearing or available for cross-examination.
According to the appellate division’s opinion, female student filed a complaint with the university alleging the petitioner, another student who shared a room with her, had kissed and touched her without consent. The university ultimately held a Student Conduct Board hearing. The Board found the petitioner had violated university policies and determined he should be suspended. He appealed, but his appeal was denied. He then filed a CPLR Article 78 proceeding, which is a process in New York for judicial review of administrative actions.
The petitioner argued the university denied him due process by not giving him an opportunity to question the complainant. The complainant did not testify or submit to cross-examination.
According the appellate division’s opinion, the university’s Title IX policy provided that the university may conduct a live hearing in a party’s absence and reach a determination of responsibility, but prohibited the decision-maker from relying on a prior statement of a party who did not submit to cross-examination. The decision-maker could, however, make a determination based on other evidence that did not constitute a “statement” by the absent party. A footnote in the opinion suggests the university may have claimed it was no longer enforcing the language in question when the petitioner’s hearing occurred, but the court noted there was no evidence that the policy had been amended or that the petitioner had been notified of a change.
The petitioner argued that all sexual interactions with the complainant were consensual. The appellate division noted the Board had primarily relied on the complainant’s written complaint and written statement to the university police. There was a witness to one of the incidents, who described seeing the petitioner and complainant kissing without hearing verbal consent, but she also described them pausing when noticed and then going back to kissing. The witness also told of subsequently confronting the petitioner about being “overly affectionate” and him apologizing and acknowledging doing “something wrong[,]’ but the appellate court noted there was no indicating he had admitted to acting without consent in the incidents that were the subject of the complaints.
The appellate division concluded the university failed to comply with its own procedures when the Board relied upon the complainant’s written statements when she was absent from the hearing and not subject to cross-examination. The appellate division concluded the Board’s determination was not supported by substantial evidence and must be annulled.
The appellate division also agreed with the petitioner that the Board had not applied the correct consent standard based on New York law. The Board held that “verbal consent” was required to show the complainant was willing to engage in the sexual activity, but New York Education Law § 6441 expressly provides that consent can be given by either words or actions.
The appellate division annulled the determination and directed the university to reinstate the petitioner and expunge any references to the matter from his records.
Although this case was decided based on the university’s policies and New York law, it does illustrate how universities sometimes do not comply with their own policies or due process. If you have been accused of a Title IX violation or other misconduct at school, a skilled Washington Title IX defense attorney can help you protect your rights and your education. Schedule a consultation with Blair & Kim, PLLC by calling (206) 622-6562.