By Jeremy Bauer-Wolf
In an unparalleled decision and a win for those who feel due process has been shunned in campus investigations of sexual assault, a federal appeals court has ruled that universities must allow students in these cases — or their representatives — to directly question their accuser in a live hearing.
The U.S. Court of Appeals for the Sixth Circuit’s opinion, in a lawsuit against the University of Michigan, has the potential to reshape the notion of due process for campus sexual assault cases, at least for institutions in the four Midwestern states that comprise the Sixth Circuit, experts say.
Also looming is the Trump administration’s imminent release of draft regulations around Title IX of the Education Amendments of 1972, the federal gender antidiscrimination law barring sexual misconduct on college campuses.
The appeals court decision would seem to match the direction of the U.S. Department of Education, which under new draft rules wants to mandate cross-examination. Education Secretary Betsy DeVos last year rescinded Obama-era guidance on Title IX, declaring it had unfairly slanted proceedings against accused students.
A student accused of sexual assault at the University of Michigan, who had been expelled, had improperly been unable to challenge the narrative and findings against him, the circuit court ruled Friday. He sued the institution, but his lawsuit was dismissed by the lower court.
Michigan, as many universities around the country do, relies on a “single-investigator” model, in which an official interviews the two parties, and potentially other witnesses, and collects evidence before deciding whether a violation occurred. Neither side has the chance to pose questions to the other.
Michigan officials did not respond to a request for comment, but a spokesman told the Detroit Free Pressthe university was “carefully reviewing” the ruling. The institution had argued that even though the accused student hadn’t been able to ask direct questions, he could still review the accuser’s statement and submit a response; direct cross-examination, Michigan said, wasn’t necessary because the university’s decision didn’t hinge entirely on their competing narratives.
Brett Sokolow, president of the Association of Title IX Administrators, said that the court’s decision “is another nail in the coffin” of single-investigator models. Judges in the decision railed against this practice, noting that even pop culture recognizes the need for due process, citing well-known scenes from the popular movies A Few Good Men and My Cousin Vinny.
They also cited a similar Sixth Circuit decision involving the University of Cincinnati, in which the court blocked the suspension of an accused rapist, asserting that his due-process rights were violated.
“Today, we reiterate that holding once again: if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder,” the court wrote.
But the judges’ interpretation of due process here goes too far and is more radical, said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with colleges on sexual misconduct matters.
The Obama rules, which came in the form of a Dear Colleague letter in 2011, did envision a scenario in which both the accused and the accuser would be able to question the other — but not in a live setting, Carter said. Allowing an alleged rapist to directly confront their accuser, or vice versa, opens up the potential for intimidation during the process, he said.
Generally, advocates for sexual assault survivors disagree with allowing face-to-face questioning, which was also discouraged in the 2011 letter. One way this could be remedied is by providing questions to a neutral third party — a hearing officer — to pose to the two parties, who wouldn’t need to be in the same room.
The Sixth Circuit decision shifts a campus adjudication process more into a courtroom-style setting, which is ill advised, Carter said.
“This is an unprecedented level of granular involvement in the level of due process a university must provide,” he said, adding that he could see this decision as a setup for a Supreme Court case as other circuits may come to contradictory conclusions.
Deborah L. Gordon, the lawyer representing the former student who sued Michigan in the case, disagrees that the ruling could present problems for the survivors and the accused. In an interview with Inside Higher Ed, she said it was a “paternalistic concept” that accusers couldn’t walk into a room and put questions to accused.
Many times, cases of sexual violence are misconstrued, Gordon said — both parties were drunk, or they were having consensual sex, only for the woman to later have regrets about some aspect of the encounter. She said it was a “disservice” to lump everyone under the umbrella of “survivor.”
She noted that for any other violation of university conduct, Michigan officials hold a live hearing. And if a student is found responsible, the student has their life permanently altered.
“The stakes are so high for these kids,” Gordon said.
Sokolow predicted that other courts could determine other ways to have a robust investigation of sexual assault cases, and indirect questioning, without “an adversarial hearing.”
“I think there is room for an alternate model, but it may take the courts a while to get used to the idea,” Sokolow said.