Two Cases Highlight The Courts’ Difficulty Resolving Due Process Challenges

Tim Burke, Manley Burke, tburke@manleyburke.com

Two recent court decisions, both involving the University of Cincinnati (UC), demonstrate the challenges, even the courts are having in attempting to balance the important need of addressing sexual assault on campus with the need to provide appropriate due process for those accused of sexual assault.

On November 30, 2016, United States District  Court Judge Michael Barrett issued an opinion and order in Doe v. University of Cincinnati, Case No. 1:16cv987.  That order granted a preliminary injunction in favor of the plaintiff to prevent the University from imposing a one-year suspension as a result of a finding by a university panel which had considered a complaint of sexual assault against Doe.

Doe was a graduate student at the University.  He met Jane Roe on Tinder.  In September of 2015, the two went to Doe’s apartment.  According to the order, “things escalated fairly quickly….  After they had sex, they hung out in his room.”

Several weeks later, Roe filed a complaint of sexual assault against Doe with UC’s Title IX office.  A seven-month long investigation followed.  Doe was ultimately afforded a hearing before the Administrative Review Committee (ARC).  Roe was not present at the hearing.  In fact, no witnesses were presented at the hearing.  While courtroom style cross-examination is not provided in the ARC hearing procedures, both the respondent and the complainant are generally given the opportunity to submit written questions to be asked of all adverse witnesses.  Because no witnesses were present, that did not happen.  Even the Title IX coordinator who conducted the investigation was not present.

Doe did not dispute the fact that he and Roe had sex.  But he claimed it had been consensual.  He was given the opportunity to make a statement to the ARC committee in which he argued Roe had time to say no and he would have stopped.  The ARC recommended that Doe be found responsible.  That recommendation was accepted by the Assistant Dean of Students, who imposed a two-year suspension.

On appeal within the University process, this sanction was reduced to a one-year suspension which was to begin in December of 2016.

Doe’s motion for a preliminary injunction focused on the University’s failure to permit him to confront his accuser.  To obtain a preliminary injunction, the court required that “a plaintiff must show that (1) it had a life, liberty or property interest protected by the due process clause; (2) it was deprived of this protected interest; and (3) the state did not afford it adequate procedural rights.¹

Judge Barrett noted that “this court recently explained that ‘[a] student has a right to procedural due process in serious school disciplinary hearings, like suspensions or expulsions.’”²  The University argued that other court decisions had made it clear that there is no general due process right to cross-examine witnesses in school disciplinary hearings.  However, as Judge Barrett pointed out, “where a disciplinary proceeding depends on a ‘choice between believing an accuser and an accused … cross-examination is not only beneficial, but essential to due process.’”³

The opinion notes the difference regarding a secondary school disciplinary hearing where the school principal presumably has much more particularized knowledge about the individual students involved and is in a good place to judge their credibility based on that knowledge.  The court contrasted that with the large university, noting the University of Cincinnati has over 44,000 undergraduate and graduate students.  As a result, the court concluded, college administrators do not have the same “particularized knowledge” that a high school principal might have with a far smaller student population.  Critically, Barrett notes:

“Therefore, the value of cross-examination is not ‘somewhat muted’ based on the school administrator’s firsthand knowledge of the students involved.  In this case, the ARC hearing committee was given the choice of believing either Jane Roe or plaintiff, and therefore, cross-examination was essential to due process.”

Doe had not been notified that the complainant would not be present at the hearing.  While the Student Code of Conduct requires that statements of witnesses who were not present at the hearing be notarized, Roe’s statements, which had been read by the ARC committee, had not been notarized.

Based on these facts, the court found that plaintiff had demonstrated a likelihood of success on the merits, that he would be irreparably harmed because his education would be delayed, that there would not be harm to others (noting that the University had permitted Doe to remain on campus while the investigation and appeal proceeded), and that the public good would be benefited by the issuance of an injunction. So for the Doe in this case, the news was good.

But just days later, on December 6, 2016, the United States Court of Appeals for the Sixth Circuit issued a decision in Doe I and Doe II v. Cummins, Case No. 16-3334, which also involved the University of Cincinnati, and leaves a great deal of uncertainty about just how much or little process is constitutionally required in university disciplinary hearings.  The Sixth Circuit case involved two separate incidents, each involving different complainants and different accused.  In Doe I, the complainant charged that Doe I had attempted to have sexual intercourse with her while she was sleeping.  Other facts indicated that she may have been intoxicated.  Doe I’s due process arguments included that a report submitted to the ARC committee did not include:  a review of the physical evidence obtained by UC police; Doe’s statement to UC Police; the statement of a witness supporting Doe’s position and physical evidence, including surveillance video and text messages which Doe believed tended to exonerate him.  Doe I also claimed that the ARC committee hearing in May of 2014 had procedural defects because the University had not responded to Doe’s attorney’s requests that the UC Police Investigator be present at the hearing, did not allow Doe to introduce evidence from the police investigation, and did not allow him to impeach a witness, the complainant’s boyfriend.  Doe I was not allowed to personally record the hearing, the ARC hearing chair refused to ask witnesses relevant questions that Doe had submitted and refused to consider a binder of evidence Doe had submitted.

Doe I appealed the ARC committee’s findings and the University determined that, in fact, substantial procedural errors had occurred and granted Doe I a new hearing.  Doe I argues that even the new hearing had significant procedural problems, including:  the ARC committee refused to ask a number of written questions that Doe had submitted; he was not permitted to make his own recording of the hearing, was not given access to a University advisor until late notice, and the panel heard “impact statements” from complainants before determining Doe’s responsibility.

Doe II was a UC law student.  Doe II claimed similar due process violations at his initial hearing.  On appeal, he too was granted a new ARC hearing.  Doe II “claims that the second hearing was permeated with many, if not all, of the same procedural defects that plagued the first hearing.  He also claims that the complainant told Doe II that he was a ‘rapist’ and was ‘going to hell’ during her victim-impact statement.  Following those comments, [the complainant] allegedly ‘stormed out of the hearing’ which precluded any opportunity for Doe II to cross-examine her.”

The District Court had dismissed Doe I and Doe II’s due process claims, finding no violation of their due process rights.  In the Sixth Circuit, the University parties contended “that appellants received constitutionally sufficient procedures, namely notice of the charges, an explanation of the evidence against them, and a meaningful opportunity to present their side of the story.”  In considering the argument, the Sixth Circuit looked heavily to the Supreme Court case of Mathews v. Eldridge, 424 U.S. 319, (1976), noting that “the level of process the 14^th Amendment requires is determined by balancing three factors: (1) the nature of the private interest affected by the deprivations; (2) the risk of an erroneous deprivation in the current procedures used and the probable value, if any, of additional or alternative procedures; and (3) the governmental interest involved.”

The court noted that a university disciplinary hearing is not a criminal trial, nor are full-scale adversarial proceedings required, but that “the focus, rather, should be on whether the student had an opportunity to respond, explain and defend, and not on whether the hearing mirrored a criminal trial.”

The court did agree that Doe I and Doe II had compelling private interests, but found that they had both received adequate notice of the charges against them, and adequate time to prepare for the ARC hearing.

While the court was critical of allowing victim impact statements prior to adjudication of responsibility, the court stated that UC has a strong interest in avoiding the bifurcation of proceedings into multiple phases – i.e., a guilt phase and a punishment phase – that would add time, expense and complexity to every disciplinary hearing.  Therefore, the court found that the introduction of victim-impact statements prior to determining appellant’s responsibility, did not impact appellant’s due process rights.

With regard to the claimed denial of effective cross-examination, the court found the Does did have the ability, although limited, to cross-examine witnessed because some of their requested questions were asked.  Balancing interests, the court said  “any marginal benefit that would accrue to the fact-finding process by allowing follow-up questions in appellants’ ARC hearings is vastly outweighed by the burden on UC” and noted that “one of our sister circuits” had upheld a similarly limited cross-examination.⁴

The court also rejected claims that the Does had been denied due process because their advisors were not allowed to actively participate in the hearings despite being able to attend them.  Allowing legal counsel to be active participants in a disciplinary hearings would, according to the court, place a significant burden on the University “due to the added time, expense and increased procedural complexity.”

Finally, the Does argued that the failure to place the burden of proof on the accusers, thus requiring the Does to prove their innocence, was a constitutional error.  The court quickly dismissed that argument based on a U.S. Supreme Court decision which had concluded “outside the criminal law area” which party bears the burden of proof “is normally not an issue of federal constitutional moment.”⁵

The bottom line was that the Sixth Circuit, while finding that UC’s process was not perfect, held the process in both Doe I and Doe II comported with the due process requirements of the Fourteenth Amendment.  Interestingly, this decision is “not recommended for publication” by the court, suggesting that the case is not of significant importance.  Obviously it was to the plaintiffs, the Does.  The Sixth Circuit decision bends heavily against intruding on University disciplinary proceedings,  seemingly leaving the court prepared to uphold any process which provides nothing more than adequate notice and some opportunity to be heard.

That is not very comforting to those accused.

1 Quoting Daily Servs, LLC v. Valentino, 756 F.3d 893, 904 (6^th Cir. 2014) (citing Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6^th Cir. 2006)).

2 Doe v. Ohio State Univ., No. 2:15-CV-2830, 2016 WL 6581843.

3 Ibid.

4 Nash v. Auburn Univ., 812 F.2d 655, (11^th C.I.R. 1987).

5 Lavine v. Milne, 424 U.S. 577 (1976).