The U.S. Sixth Circuit Court of Appeals handed down an opinion in Doe v. Baum, et al. on Friday, September 7, 2018 that has the potential to substantially change college and university conduct proceedings. A three-judge panel held in a University of Michigan sexual assault case that “a public university…must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”
No previous Court, including the U.S. Supreme Court, has ever held that “due process” requires a live hearing with this type of personal cross-examination, or so specifically mandated how a campus conduct proceeding must be administered. The Sixth Circuit has jurisdiction over the states of Kentucky, Michigan, Ohio and Tennessee, but this ruling has potential implications across the United States as the first Court to so hold.
Since the U.S. Fifth Circuit Court of Appeals held in 1961’s landmark case Dixon v. Alabama State Board of Education, 294 F. 2d 150, that some level of “due process” was required at a “tax-supported college” in cases of “suspensions or expulsion of a student” they have been afforded wide latitude in structuring proceedings. That Court notably held “This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required.” The U.S. Supreme Court has never directly addressed this type of case in higher education.
One of the three Judges in the Doe case, Ronald Lee Gilman, addressed this in a partial dissent writing that “the majority has traveled ‘a bridge too far’ in mandating that ‘if the university does not want the accused to cross examine the accuser under any scenario, then it must allow a representative to do so.’” Prior rulings have addressed various means by which an accused student can address the credibility of witnesses through other means such as relaying questions through a hearing officer, a possibility this Court completely sidestepped.
The Court does not substantially address the potential negative impact that having an alleged rapist interrogating their accuser may have on the process other than to hold that if an institution “is worried about the accused confronting the accuser, it could consider other procedures such as a witness screen. But if the university does not want the accused to cross-examine the accuser under any scenario, then it must allow a representative to do so.”
While the University of Michigan and other institutions are considering the implications of this ruling and options to respond, either of the two options presented by the Court could fundamentally change the nature of campus conduct proceedings involving the possibility of suspension or expulsion as they have existed for nearly 60 years. Following the Court’s holding would mean either permitting an alleged rapist to personally interrogate their accuser, potentially subjecting them to emotional intimidation (and potentially vice-versa), or requiring advocates, possibly attorneys as the Court does not further address who they should be, to be active participants in the proceedings, at least for the purposes of cross-examining witnesses, which would fundamentally alter the degree of complexity of these proceedings.
