Courts Continue To Struggle To Define Due Process In The Student Disciplinary Process

Timothy M. Burke, Manley Burke, tburke@manleyburke.com

Attempts by courts to define what due process is appropriate in a student disciplinary proceeding remain far from producing unanimity of results. The United States First Circuit Court of Appeals in August acknowledged its disagreement with the United States Sixthh Circuit Court of Appeals.

Many of the most recent student due process cases have grown out of Title IX and the admirable concern of universities to address allegations of sexual misconduct. That was the case with Haidak v. University of Massachusetts.[1]

James Haidak and Lauren Gibney had what the Court described as a tumultuous romantic relationship. Theirs was an on-again, off-again relationship. Repeated complaints were filed with the University and one in civil court. Three no-contact orders were issued. In spite of those orders, the parties continued to exchange hundreds of phone calls and thousands of text messages, many initiated by Gibney. After the third no-contact order by the University, without any notice or hearing, the University informed Haidak that his “behavior represent[ed] a direct and imminent threat to [his] safety and the safety of the University community” and immediately suspended him. Haidak remained suspended for five months before he finally had a University disciplinary hearing. In the interim, Gibney, while still having contact with Haidak, sought a no-contact order from the local State Court.[2]

In preparing for his disciplinary hearing, Haidak sought to present the transcript of the Court hearing that denied Gibney’s request for a State Court no-contact order, a violation of which could have resulted in criminal penalties. Haidak apparently believed that what Gibney had admitted in the Court hearing was important because, according to the Court of Appeals decision:

When confronted with text messages she sent to a friend about her relationship with Haidak, Gibney further admitted that she had voluntarily interacted with Haidak after the no-contact order had been issued, including by having consensual sex with him as recently as mid-September [just weeks before the hearing].She also admitted that she had struck and bitten Haidak during the course of their relationship.[3]

Haidak also asked to be able to cross examine Gibney in the University disciplinary hearing. He was informed he could not directly cross examine Gibney, but could submit a list of questions and request that the members of the disciplinary board ask them.

However, at the University’s hearing, the transcript of the Court hearing was not allowed in evidence and none of Haidak’s questions were asked of Gibney. Haidak was expelled after his appeal of the results of the disciplinary process was denied by the University.

He sued in federal court on numerous grounds, challenging both his suspension and ultimate expulsion. In the federal district court, both Haidak and the University filed motions for summary judgment. Haidak’s was denied at the University’s granted, thereby setting the stage for the appeal to the United States First Circuit Court of Appeals. In its 41-page decision, the Court of Appeals takes great care in discussing Haidak’s arguments. Critically, the Court notes that:

It has long been clear that, though states have broad authority to establish and enforce codes of conduct in their educational institutions, they must ‘recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.[4]

Unlike some due process cases where plaintiffs have taken a shotgun approach attacking numerous aspects of a University’s hearing, in this case, Haidak made only two complaints about the Process: 1) the denial of his evidence; and 2) the failure to allow direct cross-examination. The Court addressed each.

As to the failure to allow Haidak’s evidence, principally the State Court hearing transcript, the Court noted that had Gibney contradicted what she admitted in the State Court, perhaps the University should have admitted that transcript. But she did not, and admitted to the University’s disciplinary board, as she had is State Court, the consensual nature of her continuing contact with Haidak. As a result, the Court found there was no error in failing to admit that transcript.

The Court struggled more with the cross-examination question. It repeated, as other courts have, that cross-examination is “the greatest legal action ever invented for the discovery of truth.”[5]

But the Court carefully examined what it described as the inquisitorial model utilized by the college disciplinary board. The Board had gone back and forth in asking questions of the two parties in three rounds of inquiry. In the end, the Court seemed to proudly recognize it was joining in a conclusion argued for by the Foundation for Individual Rights in Education (FIRE), which had filed an amicus brief in the case. FIRE had argued that there must be “some opportunity for real-time cross-examination, even if only through a hearing panel.”

Haidak urged the Court to go farther than FIRE and argued for the right to have direct cross-examination. He relied on Doe v. Vaughn. [4] In that case, the Sixth Circuit had announced a clear holding that a state school had to provide for cross-examination by the accused or his or her representatives in all cases turning on credibility determinations.

It is on the question of direct cross-examination by the parties that the two Circuit Courts part ways. The Haidak Court refused to go as far as the 6th Circuit. Instead it upheld the University’s decision to expel, but it did so only after determining that the University disciplinary board had actually done an appropriately thorough job of questioning Haidak’s accuser. The Court also notes that if that had not been the case, it would have had no problem finding for Haidak.

While Haidak lost on all his arguments regarding his expulsion, the Court did overturn the District Court’s decision that had upheld Haidak’s suspension. The Circuit Court was critical of the fact that the suspension was announced without notice or hearing and went on for over five months before Haidak was able to present his defense in the hearing. The Court sent the issue of his suspension back to the trial court. While Haidak is no longer a student at the University of Massachusetts-Amherst, the University may yet have to pay Haidak damages for having denied him due process when it came to his suspension.

The decisions by the First and Sixth Circuits are not really so far apart. They both insist on due process and really only disagree on how the examination of the accuser is to be conducted. We may still get an answer to that question when the Department of Education publishes its new Federal Regulations regarding Title IX investigations, expected later this fall.

[1] 933 F.3d 56, 62 (1st Cir. 2019).

[2] Haidak, 933 F.3d at 62.

[3] Id. at 64.

[4] Goss v. Lopez, 419 U.S. 565, 574 (1975).

[5] Id. at 68 (citing California V. Green, 399 U.S. 149, 158 (1970)).

[6] 903 F.3d 575 (6th Cir. 2018); see also, Fraternal Law Newsletter, November 2018.