The U.S. Supreme Court building in June. (Photo by Ricky Carioti/The Washington Post)
Contributor, The Volokh Conspiracy

From today’s Sixth Circuit decision in Doe v. University of Cincinnati:

University of Cincinnati students John Doe and Jane Roe [pseudonyms] engaged in sex at John Doe’s apartment. John contends that the sex was consensual; Jane claims it was not. No physical evidence supports either student’s version.

After considerable delay, defendant University of Cincinnati (“UC”) held a disciplinary hearing on Jane Roe’s sexual assault charges against graduate student John Doe. Despite Jane Roe’s failure to appear at the hearing, the University found John Doe “responsible” for sexually assaulting Roe based upon her previous hearsay statements to investigators. Thereafter, UC suspended John Doe for two years — reduced to one year after an administrative appeal….

The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process. Here, the University’s disciplinary committee necessarily made a credibility determination in finding John Doe responsible for sexually assaulting Jane Roe given the exclusively “he said/she said” nature of the case. Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.

“The right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings.” However, general rules have exceptions, and “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” The more serious the deprivation, the more demanding the process. And where the deprivation is based on disciplinary misconduct, rather than academic performance, “we conduct a more searching inquiry.” “Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed.” For the student, “[t]he risk of error is not at all trivial, and it should be guarded against … without prohibitive cost or interference with the educational process.”

The court stressed the value of cross-examination, though it also noted that university hearings need not provide the same sort of direct lawyer-questioning-witness cross-examination that is allowed in courtrooms:

Accused students must have the right to cross-examine adverse witnesses “in the most serious of cases.” … If a case “resolve[s] itself into a problem of credibility, cross-examination of witnesses might … be[] essential to a fair hearing.”

[T]he circumstances of the present case pose [this sort of] credibility contest …: John Doe maintains that their sex was consensual; Jane Roe claims that it was not. Importantly, the Committee’s finding of responsibility necessarily credits Roe’s version of events and her credibility. The Title IX Office proffered no other evidence “to sustain the University’s findings and sanctions” apart from Roe’s hearsay statements. Cf. Plummer v. Univ. of Houston (5th Cir. 2017) (cross-examination not required where the plaintiffs distributed videos and a photograph of the victim’s “degrading and humiliating” assault online, and “[t]he University’s case did not rely on testimonial evidence” from the victim).

Defendants insist that Roe’s nonappearance did not impact the fairness of the proceedings because Doe still had an opportunity be heard. The ARC panel invited him to “summarize what happened” in his own words, and Doe took advantage of that opportunity. He disputed Roe’s overall interpretation of events and a number of her specific claims. Because plaintiff was able to draw attention to alleged inconsistencies in Roe’s statements, defendants argue that cross- examination would have been futile. We disagree.

UC assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused. “A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not.” “The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause.”

Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, “cross-examination has always been considered a most effective way to ascertain truth.” … Cross-examination takes aim at credibility like no other procedural device. A cross-examiner may “delve into the witness’ story to test the witness’ perceptions and memory.” He may “expose testimonial infirmities such as forgetfulness, confusion, or evasion … thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” He may “reveal[] possible biases, prejudices, or ulterior motives” that color the witness’s testimony.

His strategy may also backfire, provoking the kind of confident response that makes the witness appear more believable to the fact finder than he intended. Whatever the outcome, “the greatest legal engine ever invented for the discovery of truth” will do what it is meant to: “permit[] the [fact finder] that is to decide the [litigant]’s fate to observe the demeanor of the witness in making his statement, thus aiding the [fact finder] in assessing his credibility.”

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The court acknowledged that this sort of questioning might be emotionally difficult for many accusers, but concluded that it was nonetheless necessary for the sake of fairness and of accuracy:

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.