We are equally mindful of Jane Roe’s interest, and the extent to which it conflicts with John Doe’s. Roe and other alleged victims have a right, and are entitled to expect, that they may attend UC without fear of sexual assault or harassment. If they are assaulted, and report the assault consistent with the University’s procedures, they can also expect that UC will promptly respond to their complaints…..Strengthening [the University’s] procedures is not without consequence for victims. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating” the same hostile environment Title IX charges universities with eliminating. However, John Doe is not requesting an opportunity to question Jane Roe “directly.” In this appeal, he does not challenge our determination in an unpublished decision that UC’s “circumscribed form of cross-examination” is constitutional. Rather, plaintiff asks only to question Roe through the ARC panel — a procedure the Department of Education’s Office for Civil Rights previously recommended for the victim’s wellbeing. (The Department subsequently withdrew its April 29, 2014, letter, and replaced it with an interim [Sept. 22, 2017] letter.)We acknowledge this procedure may not relieve Roe’s potential emotional trauma. Still, a case that “resolve[s] itself into a problem of credibility” cannot itself be resolved without a mutual test of credibility, at least not where the stakes are this high. Flaim “While protection of victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basic protection for the rights of the accused raises profound concerns.”One-sided determinations are not known for their accuracy. Jane Roe deserves a reliable, accurate outcome as much as John Doe.
The court went on to deal with the university’s argument that it can’t compel witnesses to attend:
UC’s Student Code of Conduct does not require witnesses to attend the hearing, and even if it did, there is no guarantee the witness would show. Universities do not have subpoena power. What is more, UC refers to cross-examination as an alternative to hearsay evidence, suggesting that the latter cannot be introduced at a disciplinary hearing unless the accused student has an opportunity to conduct the former. While UC’s concerns are not unfounded, both arguments lose sight of our limited holding in this case.For one, defendants are not required to facilitate witness questioning at every nonacademic misconduct hearing…. [C]ross-examination is “essential to due process” only where the finder of fact must choose “between believing an accuser and an accused.” The ARC panel need not make this choice if the accused student admits the “critical fact[s]” against him. Another relevant factor is that UC’s allegations against Doe rested solel7y on Roe’s statements to investigators. Cross-examination may be unnecessary where the University’s case “d[oes] not rely on testimonial evidence” from the complainant.For another, nothing in our decision jeopardizes UC’s ability to rely on hearsay statements. Hearsay and its exceptions are delineated in the Federal Rules of Evidence, but a university student has “no right to [the] use of formal rules of evidence” at his disciplinary hearing. UC may still open the hearing with a Title IX report summary that includes the parties’ “out-of-court” statements, and the ARC panel may still rely on those statements in deciding whether Doe is responsible for violating the Code of Conduct — it need not demand that Roe and Doe recite the evening’s events from memory. We do not require schools to “transform [their] classrooms into courtrooms” to provide constitutionally adequate due process.Plaintiff is likely to succeed on the merits of his due process claim not because defendants introduced hearsay evidence against him, but because the nature of that evidence posed a problem of credibility. Roe claimed that John Doe engaged in specific acts without her consent, and John Doe replied that he did not….That said, we acknowledge that witness questioning may be particularly relevant to disciplinary cases involving claims of alleged sexual assault or harassment. Perpetrators often act in private, leaving the decision maker little choice but to weigh the alleged victim’s word against that of the accused. Credibility disputes might therefore be more common in this context than in others. Arranging for witness questioning might also pose unique challenges given a victim’s potential reluctance to interact with the accused student. However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype … if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology. That fact mitigates UC’s administrative burden.
A very interesting decision, and, as a federal appellate decision, likely to prove quite influential.
Thanks to Howard Bashman (How Appealing) for the pointer.