First Circuit: Student Is Not Entitled to Cross-Examination in Disciplinary Proceedings

In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX.  As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen.  Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser.  The student had been accused of assault by another student, who was his girlfriend at the time.  The university suspended him for five months and ultimately expelled him.  He filed suit against the university.   The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed.  The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

The Ninth Circuit considered two hearings, the expulsion hearing and the suspension hearing. The court found the expulsion hearing occurred according to the written procedures the plaintiff had been given prior to the hearing.  He had received notice of the charges that would be heard at the hearing.  He was allowed to be present, hear the evidence against him, respond, and call his own witnesses.  His attorney was present and he was allowed to consult with his attorney.  The burden of proof was on the other party.

The plaintiff argued the hearing was unconstitutional because some of the evidence he offered was excluded, but the Ninth Circuit found nothing unfair in the exclusion of that evidence.  He also argued his procedural due process right was violated because he was not given an opportunity to directly interrogate the complainant.  The Ninth Circuit noted the university had used “a non-adversarial model of truth seeking.” The university investigated the facts and developed arguments.  The parties did not make opening or closing arguments, submit written arguments, or question witnesses.  The court described the method as “inquisitorial.”

Courts have generally held students do not have a right to counsel in school disciplinary proceedings.  The court expressed doubt that cross-examination by an accused student would increase the probative value and decrease the “risk of erroneous deprivation” to the extent it would be constitutionally required.  The court noted that, in the context of a school disciplinary hearing, such cross-examinations between the accused and accuser could devolve into a debate or hostility.  The court did agree, however, that due process required “some opportunity for real-time cross-examination, even if only through a hearing panel.”

The Ninth Circuit rejected the Sixth Circuit’s holding in Doe v. Baum that the state school had to allow the accused or his or her representative to cross-examine the accuser in cases determined based on credibility.  If the school gives itself the exclusive right to examine witnesses, however, it takes on the responsibility for ensuring the adequacy of the questioning.  According to the court, the university’s manual implied the Board should prioritize student comfort over serious examination, by starting with “easy” questions, avoiding leading questions, and being aware that “a line of questions” may “be very adversarial.” The court pointed out that this approach was not limited to the complaining witness, but was to be taken with both sides.

The plaintiff had provided a list of 36 proposed questions, but 20 were removed before they were submitted to the Hearing Board.  The Hearing Board therefore never saw his full list of questions, meaning it was possible no one would effectively confront the accusations against the plaintiff.

Although the procedures as set out could result in due process issues, the court found the Hearing Board had ensured the plaintiff received a fair process.  The Hearing Board had thoroughly questioned the complainant.  It alternated between questioning the complainant and the plaintiff, which allowed its questions to the complainant to be informed by the plaintiff’s testimony.  The Board’s findings also showed that its process was able to identify weaknesses in the charges.  It found the plaintiff was not responsible for endangering behavior and harassment.

As to the suspension, generally notice and a hearing should occur before a student is suspended.  There are circumstances were a student poses a continuing danger and may be immediately suspended, but even then a hearing should occur as soon after as practicable.  The court found there was no exigency in this case because the university waited 13 days after finding out about the continued contact to suspend the plaintiff.  The university did not provide any evidence showing it could not have provided a process during that time period.  The court also considered the length of the suspension and the fact the university knew the plaintiff disputed the primary allegation supporting the suspension.  The court held when there is no exigency and a student faces a lengthy suspension, due process requires more than an informal interview. The plaintiff’s due process rights were violated as to the suspension.

This case is important because its holding that an accused student does not have the right to directly cross-examine the accuser is in conflict with the holding of the Sixth Circuit.  This split in the circuits could open the door for a Supreme Court review, which could provide clearer direction on what due process requires.  If you are facing a Title IX accusation, an experienced Washington Title IX defense attorney can help protect your rights and fight for your education.  Schedule your consultation by calling Blair & Kim, PLLC, at (206) 622-6562.