Op-Ed: Due Process for Sexual Assault Cases
Universities now play cop, prosecutor, judge and jury in campus sexual-assault cases, often without allowing due process rights to the accused. The Sixth Circuit Court of Appeals last week issued an important rebuke to these Title IX proceedings that ought to become a national standard.
Since 2011 more than 300 accused students have sued over Title IX decisions. Doe v. Baumwas brought by a former University of Michigan student accused of sexual assault. John Doe and Jane Roe, as the parties are identified, agreed they’d attended a party, had sex and that she vomited in a trash can. A few days later she told administrators she had been incapable of giving consent. John Doe disagreed, saying she didn’t seem drunk and had consented.
The case illustrates how an accused student’s fate can dangle on a thread when universities employ a “preponderance of evidence” standard that requires a mere 50.01% likelihood of guilt. The University of Michigan conducted a three-month probe, interviewing 23 witnesses whose accounts varied. The investigator ruled in John Doe’s favor.
His accuser appealed to a three-member Title IX panel that included a student, then-assistant law school dean David Baum, and a retired assistant professor from the dental school. They found John Doe responsible for sexual assault “after two closed sessions (without considering new evidence or interviewing any students),” wrote Judge Amul Thapar.
John Doe needed 13.5 credits to graduate, but the school told him he had to withdraw or be expelled. He left and sued, claiming administrators deprived him of the constitutional property right to his education without due process. Since the case relied on Title IX adjudicators’ judgment about whose witnesses were most credible, John Doe argued he should have been given the chance to cross-examine his accuser and other witnesses.
In Matthews v. Eldridge (1976), the Supreme Court established a balancing test over a property right claim based on how difficult it would be to provide due process and how much the defendant stood to lose. John Doe argued that the university would have incurred minimal cost if it allowed him to question witnesses.
Administrators allow cross-examination in other misconduct cases, and they’ve failed to explain why they treat Title IX cases differently. The stakes are enormous for John Doe. Being labeled a sex offender could permanently damage his reputation and jeopardize his education and future prospects.
The Sixth Circuit’s panel ruled for John Doe and said both parties or their legal representatives are entitled to cross-examine witnesses. “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’s demeanor and determine who can be trusted,” wrote Judge Thapar, a Trump nominee.
The decision affects Title IX practices at more than 40 state colleges and universities in Michigan, Ohio, Tennessee and Kentucky, but the opinion may influence other courts considering similar cases. The ruling also adds legal credence to Education Secretary Besty DeVos’s effort to restore due process in Title IX proceedings. Michigan hasn’t said if it will appeal, but the Supreme Court is overdue for a case on how universities adjudicate sexual assault.