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Sixth Circuit Holds Student Can Waive Cross-Examination in Title IX Hearing

The new Title IX regulations will afford students accused of sexual harassment or sexual misconduct some due process protections.  Those regulations are being challenged, and even when they take effect, schools may not fully follow them. Students in Washington State who are not aware of their rights may waive them or even be pressured into waiving them.

In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights.  Following an investigation for alleged sexual misconduct, the school’s policy allowed for two options for resolution, an administrative hearing or a board hearing.  The administrative hearing was a more informal process in which an adjudicator met with each party separately.  The adjudicator would then determine culpability and any punishment based on those meetings and the investigatory materials.  The administrative hearing process did not provide for the parties to present evidence or cross-examine witnesses.  The more formal board hearing involved an actual hearing before a three member panel, where witnesses could testify and a type of cross-examination.  Both parties would be allowed to question witnesses and submit questions that they wanted to ask each other to the panel.  The panel would then determine culpability and punishment, if appropriate.

In this case, both parties indicated in their signed statements that they preferred an administrative hearing.  The University therefore moved forward with an administrative hearing.  The hearing officer found the plaintiff was “responsible for non-consensual sexual intercourse under the university sexual misconduct policy” and ordered a two year suspension.  The hearing officer also barred the plaintiff from campus during his suspension and from living in University housing after the suspension.

The plaintiff appealed, requesting a shorter period of suspension.  He alternatively requested a suspension of three years, so the complainant could graduate before he came back.  The appeals board granted the alternative request and increased his suspension to three years.

The plaintiff sued the university, arguing it had violated Title IX and breached its contract.  The district court dismissed the case on summary judgment, and the plaintiff appealed.

According to the Sixth Circuit, the plaintiff had admitted to certain sexual contact without the complainant’s consent, though he disputed that he had engaged in other alleged conduct.  The Sixth Circuit found the conduct he had admitted to constituted “non-consensual sexual intercourse” under the University’s policy.  The factual dispute, the Sixth Circuit reasoned, was not whether the plaintiff had violated the policy, but to what extent he had done so.  Based upon this reasoning, the Sixth Circuit found the plaintiff could not show the hearing had an “erroneous outcome.”

The Sixth Circuit acknowledged that the hearing officer had not made express findings regarding the conduct that occurred.  The Sixth Circuit noted the extent of the violation could be relevant to the punishment.

The plaintiff argued the question of his culpability turned on which party the University believed, and cross-examination could have resolved that issue.  The Sixth Circuit found, however, that the plaintiff had waived any right he may have had to cross-examination.  Citing cases involving a variety of administrative proceedings, the court stated that individuals may waive their rights in an administrative proceeding.  The Sixth Circuit noted the plaintiff had stated he did not “want any witnesses” and had chosen the type of procedure that did not allow witnesses.  Considering previous case law, the court found no difference between a plaintiff who did not attend his hearing and one who chooses not to have a hearing with witnesses at all.  The Sixth Circuit found the plaintiff had requested the procedure and therefore could not argue procedural deficiency.

The Sixth Circuit also rejected the plaintiff’s breach of contract claim, finding the policy violations he alleged the University committed did not rise to the level of an abuse of discretion.

The Sixth Circuit affirmed the district court’s judgment.

Neither the district court nor the Sixth Circuit opinion provide detailed information around how the hearing options were presented to the plaintiff or how he made the decision.  This case shows, however, how important such decisions can be in a Title IX investigation and disciplinary proceeding.  The Sixth Circuit found the plaintiff could not challenge the procedure that he had selected.

If you have been accused of sexual harassment or sexual misconduct at school, an experienced Washington Title IX attorney can help you ensure your rights are protected through the entire process.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up an appointment.

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