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Split Appeals Court Rulings on Title IX Cross-Examinations Sets Stage for SCOTUS Showdown

A recent decision handed down by a federal appeals court in early August may add to growing challenges concerning Title IX regulations already in flux – particularly as they relate to due process rights and the rights of students (or their representatives) to directly question accusers in campus sexual misconduct cases.

The most recent decision, which comes from the First Circuit Court of Appeals, found that administrators from the University of Massachusetts Amherst violated a former student’s due process rights when they suspended him without conducting a formal hearing into allegations that he assaulted and harassed his girlfriend.

The ruling is significant in that it splits from a decision from the Sixth Circuit Court of Appeals regarding students’ due process rights to conduct cross-examination in Title IX cases – which are administrative proceedings governed by Title IX of the Education Amendments of 1972, and concern claims of sexual violence, harassment, and stalking among students and / or faculty.

Here’s a breakdown of the rulings and major discrepancy:

  • 6th Circuit Ruling (September 2018) – A ruling from the Sixth Circuit Court of Appeals on September 7, 2018 held that when a university must choose between competing narratives, or faces dispute over credibility that is material to resolving a case, it must provide the accused with their due process right to a hearing that includes an opportunity to conduct cross-examination. The Sixth Circuit’s opinion further noted that “opportunity to cross-examine” may mean either the accused student can directly question their accuser or, given the emotional trauma an alleged victim may incur by having to confront their accuser, the accused student’s representative / agent (i.e. their attorney) can cross-examine the accuser or witness.
  • 1st Circuit Ruling (August 2019) – The U.S. Court of Appeals for the First Circuit’s Title IX ruling from August 6, 2019 agreed in part with the Sixth Circuit that public universities which have to decide Title IX cases by choosing competing narratives must provide the right to cross-examine accusers and adverse witnesses. However, it departed from the Sixth Circuit by adding that a right to cross-examination in Title IX cases doesn’t necessarily mean the accused student has a right to personally question accusers / witnesses. Per the First Circuit’s opinion, student-conducted cross-examination wouldn’t necessarily increase the probative value of hearings, and may cause alleged victims to suffer further emotional harm. As such, it agreed with the Foundation for Individual Rights in Education’s position that due process in the university disciplinary setting requires “some opportunity for real-time cross-examination, even if only through a hearing panel” – meaning the right to cross-examination could be satisfied when a panel of university staff and / or students handle the questions.

Due Process & Title IX: What’s the Issue?

Both cases heard by the Sixth and First Circuit Courts concerned Title IX proceedings at public universities, and how the Due Process Clause mandates universities to provide accused students with a formal hearing that includes an opportunity to conduct cross-examination.

Both courts agreed students implicated in such proceedings are entitled to their Due Process rights when credibility is contested and material to resolving the case – particularly when it comes to the “opportunity to be heard,” which is the constitutional minimum (under the Fifth and Fourteenth Amendments). Both courts ruled accused students should have this opportunity.

As the 6th Circuit noted in its ruling, however, determining what an “opportunity to be heard” should be is a more difficult and fact-specific predicament. On this, the courts agreed upon two general points:

  1. Universities should hold hearings before imposing serious sanctions upon students accused of misconduct; and
  2. When any final determination or resolution depends on credibility (of the accuser, witnesses, or the accused) universities must include in those hearings an opportunity for cross-examination.

However, they did not see eye-to-eye when it comes to what the cross-examination actually looks like. For the Sixth Circuit, an opportunity to cross-examine means having an “agent” conduct the questioning on behalf of the student. For the First Circuit, cross-examination need not be limited to only having the student or their agent conduct questioning.

Cross-Examination in Title IX Cases: What it “Looks Like” & Why it Matters

  • Cross-examination is an adversarial process that offers opportunities for follow-ups and observations that can help clear up issues regarding the reliability of evidence and credibility of parties involved. This adversarial testing is viewed as being much more effective at evaluating credibility / reliability than the submission of written statements.
  • Cross-examination is something we’ve become familiar with in the courts. That includes criminal cases (where defendants can be both questioned by prosecutors, and given the opportunity to cross-examine the government’s witnesses) or civil cases, where the same applies, although with a lower burden of proof.
  • While important to resolving competing narratives and questions of credibility and reliability, cross-examination can pose certain risks – including the risk of causing alleged victims further emotional harm and suffering by having them directly confront their alleged attacker.

As both Courts agree, rectifying this problem does not mean denying cross-examination entirely (as school officials did in the University of Michigan case heard by the Sixth Circuit), but rather providing the accused with the opportunity to be present at live / real-time questioning of the accuser.

For the Sixth Circuit, that could mean allowing the accused student’s representative or agent (i.e. their attorney) to conduct cross-examination on their behalf. For the First Circuit, that simply only means, in the university disciplinary setting:

“some opportunity for real-time cross-examination, even if only through a hearing panel."

That two of our highest courts could not agree on what “circumscribed form” of cross-examination or an “alternative procedure” would satisfy the accused’s due process rights, protect alleged victims, and prevent costly and overly complex procedures for schools, may seem innocuous, it’s a rift large enough to create considerable confusion and chaos in the schools handling Title IX cases, and the courts which inevitably hear appeals arising from those cases.

As such, the latest ruling from the First Circuit Court of Appeals may set the stage for the case to be heard and decided upon by the U.S. Supreme Court. Such a ruling could set a precedent that may have sweeping effects on Title IX proceedings in U.S. schools and colleges, and the rights of the accused.

Regulatory Changes Could Give Schools Greater Flexibility over Title IX Cases

If a potential Supreme Court showdown isn’t enough, there remain other long-standing issues concerning the policies and procedures used by colleges that handle accusations of campus sexual assault, relationship violence, harassment, stalking, or other claims which fall under the purvey of Title IX. Chief among them are looming regulatory changes promised by the U.S. Department of Education.

Nearly two years ago, the U.S. Department of Education pulled Title IX guidance issued under the Obama Administration – which came from a “Dear Colleague” letter in 2011 – and replaced the guidance with draft regulations that gave colleges more flexibility when adjudicating Title IX cases.

Those regulations have not yet been finalized. When they are, any conflict with court decisions can contribute to even more confusion within universities struggling to properly handle what are now higher profile and heavily scrutinized proceedings. Until then, schools will have only a patchwork of legal rulings from the court to base their policies on, some of which may differ depending on where those schools are located.

Facing Title IX Allegations? Call Friedman & Nemecek.

Due process in Title IX cases is becoming a confusing mixture of conflicting cases and evolving, half-finished regulations. That problem means not only more headaches for schools and greater potential for federal appeals, but also increased risks for the accused.

Today, students facing Title IX allegations are subject to intense social scrutiny, a lack of clear policies, and immense risks for serious repercussions – including not only sanctions which can impact their collegiate careers, personal reputations, and professional futures, but also potentially result in criminal investigations and what could be serious charges for domestic violence, violent crimes, or sex crimes.

The need for representation in Title IX cases cannot be understated; working with attorneys experienced in administrative disciplinary matters, criminal law, and evolving federal regulations can make a difference. At Friedman & Nemecek, we help clients facing Title IX accusations at any school in Ohio. Call (888) 694-4645 or contact us online to speak confidentially with a lawyer.

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