Failure to Provide Cross-Examination Overturns Dismissal of University of Michigan In Due Process Case

Tim Burke, Manley Burke, tburke@manleyburke.com

On September 7th of this year, the United States Court of Appeals for the Sixth Circuit issued a decision overturning the dismissal of the University of Michigan in a case filed by John Doe. Doe withdrew from the University only 13.5 credits short of graduating when it appeared he was about to be expelled for violating the University’s sexual assault policy. The charges against Doe grew out of an encounter he had with Jane Roe, another student at Michigan University. The court described that encounter this way: “Halfway through Roe’s freshman and Doe’s junior year, the two crossed paths at a ‘Risky Business’ themed fraternity party. While there, they had a drink, danced, and eventually had sex. Two days later, Roe filed a sexual misconduct claim with the University claiming she was too drunk to consent, and that having sex with an incapacitated person (unsurprisingly) violates University policy. The University immediately launched an investigation.” The two parties’ views of the facts and whether or not there was consent, or could have been consent given the allegation that Roe was incapacitated by alcohol, starkly contrasted. According to the court, “if Doe’s and Roe’s stories seemed at odds, the twenty-three other witnesses did not offer much clarification. Almost all of the male witnesses corroborated Doe’s story, and all the female witnesses corroborated Roe’s.” The University-assigned investigator conducted a three-month long fact-finding investigation, but in the end was unable to determine whether or not “Roe had exhibited outward signs of incapacitation that Doe would have noticed before initiating sexual activity.” The investigators’ recommendation was that the Administration should rule in Doe’s favor and close the case.

Roe appealed and a three-member board rejected the investigator’s report without considering any new evidence or interviewing any students. It simply concluded that Roe’s version of events was “more credible” than Doe’s, and Roe’s witnesses were more persuasive. The next step would have been a sanction phase, but it was at that point that Doe withdrew as a student. He subsequently brought a lawsuit claiming that the University’s disciplinary procedure violated his due process rights under the Fifth Amendment to the Constitution and violated Title IX by discriminating against him on account of his gender. The University filed a motion to dismiss, which the trial court granted in its entirety.

The Sixth Circuit Court of Appeals took a different view. Doe argued he should have received a hearing and had the opportunity to cross examine Roe and other witnesses supporting Roe’s position. The court majority was very clear regarding the importance of cross-examination recalling that the court had, in earlier cases, made two items clear. One, a student accused of misconduct must be given some sort of a hearing before imposing a serious sanction like expulsion or suspension. Two, when the University’s decision turns on the credibility of the accuser, the accused, or other witnesses, that hearing must include an opportunity for cross examination.

As the court put it “Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented for uncovering the truth’ (citation omitted). Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact finder an opportunity to assess a witness’ demeanor and determine who can be trusted. So if a University is faced with opposing narratives about potential misconduct, the Administration must facilitate some form of cross-examination in order to satisfy due process.”

The court offered this interesting footnote in further support of its position: “Even popular culture recognizes the importance of cross-examination. See A Few Good Men… (depicting one of the most memorable examples of cross-examination in American cinema) ; My Cousin Vinny…(demonstrating that cross-examination can both undermine and establish the credibility of witnesses).”

The court does not ultimately describe exactly how the cross-examination right must play out but notes that “the University must allow for some form of live questioning in front of the fact finder.” The court also kept open the possibility of providing some protection so that a victim is not revictimized by being subjected to live cross-examination by the accused. For instance the court noted that “this requirement can be facilitated by modern technology, for example, by allowing a witness to be questioned via Skype ‘without physical presence’.”

The court also considered Doe’s appeal based on his arguments that Title IX had been violated. Doe claimed that Title IX had been violated for three reasons. One, the University had reached an erroneous outcome in this case because of his sex. Two, the University relied on archaic assumptions about the sexes when rendering a decision. Three, the University exhibited deliberate indifference to sex discrimination during his proceeding. The court made short work of the second and third claims noting that neither of these claims apply in the context of University disciplinary hearings. However, the court did uphold his appeal as it found that his complaint plead facts sufficient to cast some articulable doubt on the disciplinary proceedings outcome and demonstrated a “particularized…casual connection between the outcome and gender bias.”

Keep in mind the Court of Appeals was reviewing the propriety of the Trial Court’s dismissal of the case on a motion to dismiss. That happens before either side has the opportunity to conduct any discovery and even before the defendants are required to provide an answer to the complaint. It’s a very high burden because all facts must be assumed to be as stated by the Plaintiff.

By no means does the Appellate Court’s decision mean that Doe will necessarily prevail on both of his revived claims or that, should this go back to a university disciplinary hearing where he has the right to cross-examine, that the University outcome will necessarily result in a finding in his favor.

The decision by the Sixth Circuit Court of Appeals was rendered by a three-judge panel. But it was not a unanimous decision. One judge wrote a concurring opinion and the third judge wrote separately, concurring in part and dissenting in part. While the dissenting judge agreed that Doe’s due process rights were violated when he was not permitted “any form” of cross-examination, the dissenting judge did not agree with the scope of cross-examination required by the US Constitution. The dissenting judge also would not have overturned the Trial Court’s complete dismissal of Doe’s Title IX claims.