Due Process

Right to Cross-Examine Witnesses in University Disciplinary Proceedings

The Sixth Circuit reaffirms this, including for sexual assault accusations, in a case against the University of Michigan; and the court also allows plaintiff to proceed with his claim that the process was biased against him because of his sex.

|The Volokh Conspiracy |

From Friday's Doe v. Baum, written by newly-appointed Judge Amul Thupar and joined by Judge Julia Smith Gibbons:

[I]f 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. Because the University of Michigan failed to comply with this rule, we reverse….

Here's an excerpt from the facts:

John Doe and Jane Roe were students at the University of Michigan. 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 complaint with the university claiming that she was too drunk to consent. And since having sex with an incapacitated person (unsurprisingly) violates university policy, the administration immediately launched an investigation. Over the course of three months, the school's investigator collected evidence and interviewed Roe, Doe, and twenty-three other witnesses. Two stories emerged.

Doe told the investigator that Roe did not appear drunk and that she was an active participant in their sexual encounter…. Roe remembered the night differently. According to her, she was drunk and unaware of her surroundings when she and Doe went to his room….

[T]he twenty-three other witnesses did not offer much clarification. Almost all of the male witnesses [chiefly Doe's fraternity brothers] corroborated Doe's story, and all of the female witnesses [chiefly Roe's sorority sisters] corroborated Roe's….

Given the students' conflicting statements, the investigator concluded that the evidence supporting a finding of sexual misconduct was not more convincing than the evidence offered in opposition to it. The investigator did note, however, that Witness 2 might have been a more credible witness because she had no prior connection to Doe, Roe, or their respective Greek organizations. But because Witness 2 only observed Roe after the sexual encounter had ended, the investigator concluded that she could not address the relevant question—Roe's level of intoxication during the encounter or what signs of intoxication she manifested at that time. So after three months of thorough fact-finding, the investigator was unable to say that Roe exhibited outward signs of incapacitation that Doe would have noticed before initiating sexual activity. Accordingly, the investigator recommended that the administration rule in Doe's favor and close the case.

Roe appealed. She argued that the evidence did not support the investigator's findings and asked the university to reconsider. The case went up to the university's Appeals Board, and a three-member panel reviewed the investigator's report. After two closed sessions (without considering new evidence or interviewing any students), the Board reversed. Although the Board found that the investigation was fair and thorough, it thought the investigator was wrong to conclude that the evidence was in equipoise. According to the Board, Roe's description of events was "more credible" than Doe's, and Roe's witnesses were more persuasive. As a result, the university set the investigator's recommendation aside and proceeded to the sanction phase. Facing the possibility of expulsion, Doe agreed to withdraw from the university. He was 13.5 credits short of graduating….

An excerpt from the court's reasoning:

Due process requires cross-examination in circumstances like these because it is "the greatest legal engine ever invented" for uncovering the truth. 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. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination [in front of the fact-finder] in order to satisfy due process….

That is not to say, however, that the accused student always has a right to personally confront his accuser and other witnesses. Universities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that.

But in circumstances like these, the answer is not to deny cross-examination altogether. Instead, the university could allow the accused student's agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker. Cf. Maryland v. Craig (1990) (holding that where forcing the alleged victim to testify in the physical presence of the defendant may result in trauma, the court could use an alternative procedure that "ensures the reliability of the evidence by subjecting it to rigorous adversarial testing" through "full cross-examination" and ensuring that the alleged victim could be "observed by the judge, jury, and defendant as they testified")….

Judge Ronald Gilman concurred in part and dissented in part on this point:

Although I agree that Doe's due process rights were violated when he was not permitted the opportunity to engage in any form of cross-examination of the witnesses against him, I disagree with the majority about the scope of cross-examination mandated by the United States Constitution in this context… [W]hen witness credibility is at issue, the accused must have an opportunity for at least a "circumscribed form" of cross-examination where he or she is allowed to submit questions to the trier of fact, who will then directly pose those questions to the witnesses…. And because Doe was not provided with even this level of cross-examination, I agree that his due process rights were violated.

I recognize that a case might arise where the Constitution requires more than [such indirect questioning], but we should address that issue only if and when it arises. We need not—and should not—resolve it today because we have been given neither the facts nor the arguments necessary to conduct an adequate analysis. I therefore believe that we should refrain from imposing on all universities a rigid requirement to provide students facing expulsion with an opportunity to have a representative cross-examine adverse witnesses.

The majority also concluded that Doe had sufficiently alleged sex discrimination by the university, so that this claim shouldn't be thrown out at the current motion-to-dismiss stage (though the majority didn't opine on what should happen after discovery, when more facts would have been developed, and the university would move for summary judgment):

Doe has pointed to circumstances surrounding his disciplinary proceedings that, accepting all of his factual allegations as true and drawing all reasonable inferences in his favor, plausibly suggest the university acted with bias based on his sex.

Around two years before Doe's disciplinary proceeding, the federal government launched an investigation to determine whether the university's process for responding to allegations of sexual misconduct discriminated against women. When news of the investigation broke, student groups and local media outlets sharply criticized the administration. The federal government's investigation and the negative media reports continued for years, throughout the Board's consideration of Doe's case.

This public attention and the ongoing investigation put pressure on the university to prove that it took complaints of sexual misconduct seriously. The university stood to lose millions in federal aid if the Department found it non-compliant with Title IX. The university also knew that a female student had triggered the federal investigation and that the news media consistently highlighted the university's poor response to female complainants. Of course, all of this external pressure alone is not enough to state a claim that the university acted with bias in this particular case. Rather, it provides a backdrop that, when combined with other circumstantial evidence of bias in Doe's specific proceeding, gives rise to a plausible claim.

Specifically, the Board credited exclusively female testimony (from Roe and her witnesses) and rejected all of the male testimony (from Doe and his witnesses). In doing so, the Board explained that Doe's witnesses lacked credibility because "many of them were fraternity brothers of [Doe]." But the Board did not similarly note that several of Roe's witnesses were her sorority sisters, nor did it note that they were female. This is all the more telling in that the initial investigator who actually interviewed all of these witnesses found in favor of Doe. The Board, by contrast, made all of these credibility findings on a cold record.

When viewing this evidence in the light most favorable to Doe, as we must, one plausible explanation is that the Board discredited all males, including Doe, and credited all females, including Roe, because of gender bias. And so this specific allegation of adjudicator bias, combined with the external pressure facing the university, makes Doe's claim plausible. Indeed, other courts facing similar allegations have reached the same result.

The dissent disagrees, taking a deep and thoughtful dive into the factual record to conclude that there is "no basis to reasonably infer" that Doe was a victim of gender discrimination. But when viewed against the backdrop of external pressure, the Board's decision to discredit Doe's fraternity brothers in part because they were fraternity brothers, while not holding Roe's witnesses to the same standard, is basis enough at the motion-to-dismiss stage. Of course, anti-male bias is not the only plausible explanation for the university's conduct, or even the most plausible. The university might have been unaffected by the federal investigation or the media's criticism, and the significance of the Board's decision to disregard Doe's witnesses' statements might be overblown. And as the dissent points out, the Board might have ruled the way it did because it believed Witness 2's testimony was more credible.

But alternative explanations are not fatal to Doe's ability to survive a Rule 12(b)(6) motion to dismiss. Doe's allegations do not have to give rise to the most plausible explanation—they just have to give rise to one of them.

As this case proceeds and a record is developed, evidence might very well come to show that today's inference is the least plausible of the bunch. Certain allegations that we must assume are true might be proven false. And with the benefit of exhibits, testimony, and cross-examination, a fact-finder may conclude that the inferences we were required to draw in Doe's favor are simply untenable. But these possibilities cannot affect this court's evaluation of Doe's complaint. Our job is simply to ensure that Doe is not deprived of an opportunity to prove what he has alleged unless he would lose regardless. Because Doe has alleged facts that state a plausible claim for relief, we reverse the district court's decision to dismiss his complaint. Whether he will ultimately succeed is a question for another day.

On this point, Judge Gilman dissented outright:

Doe crucially fails to link general pressure on the University of Michigan to the particular proceedings that he faced. Nor does Doe allege any facts suggesting a pattern of discriminatory behavior by the University in its response to sexual-assault allegations, or that he made any sexual-misconduct complaints himself that the University ignored …. There is also no allegation here that the investigator faced individualized criticism for her handling of previous sexual-assault claims and subsequently manifested hostility toward Doe …. In fact, the investigator here found in favor of Doe, and Doe acknowledged that her investigation was "thorough." …

[T]he majority reasons that "when viewed against the backdrop of external pressure, the Board's decision to discredit Doe's fraternity brothers in part because they were fraternity brothers, while not holding Roe's witnesses to the same standard, is basis enough at the motion-to-dismiss-stage." But the majority's observation about the Appeals' Board's alleged disparate treatment of the witnesses is not borne out by the record….

To start with, the Appeals Board discussed statements from only two of Roe's sorority sisters, although additional sorority sisters provided statements that were contained in the investigator's report. The record reflects the following evaluation by the Appeals Board: ["]Two witnesses who know [Roe] reported that they observed [Roe] drinking from the wine bag at [Doe's] fraternity and also reported that they perceived she was intoxicated for a variety of reasons (very energetic when she's drunk; inhibitions were lowered; and speech that was 'not completely clear,' contained 'occasional slurs,' and occasionally trailed off at the end of sentences).["]

The Appeals Board provided no further discussion of these statements that would suggest that it was relying on them beyond its observation that Roe's statements were "corroborated by other witnesses, particularly by Witness 2's observations of [Roe's] behavior and physical condition immediately after the sexual encounter." And this observation by the Appeals Board leads directly to the biggest weakness in both Doe's and the majority's position: the Appeals Board's decision to credit the testimony of Roe and Witness 2 (and subsequently to find Doe responsible for sexual misconduct) was based on the considerations that (1) Witness 2 spent significant time with Roe following Roe's sexual encounter with Doe, and (2) Witness 2 had no connection to Doe, Roe, or their respective Greek institutions….

Whether the statements made by Roe's sorority sisters were credible was not discussed. The Appeals Board's decision instead shows that the statements by Doe and his witnesses were disfavored only as compared to the statements of Roe and Witness 2, and that there was no categorical preference shown for or against statements by fraternity brothers versus sorority sisters, or for or against statements by men versus women as such. The Appeals Board also noted that Witness 2's observations were further corroborated by two witnesses who helped Roe into a vehicle outside the fraternity house and who, like Witness 2, had no connection to Doe or Roe.

I therefore find no basis to reasonably infer that the Appeals Board declined to rely on the statements made by Doe and his witnesses simply because they were men….

NEXT: A Mathematician Says Activists Made His Paper Disappear Because Its Findings Offended Them

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Of course you should have the right o cross-examine. There is the very length drawn out exercise to confirm the obvious. It also emphasizes IMO that these serious accusation should not be handled by a Title IX tribunal. Go to the police. Really anything that is against he law should be handled in this way.

    Things that are not against the law but against a code of conduct, e.g. cheating on tests, can be handled by the U . Still should be fair hearings and should be based on the justice system model.

    1. Agreed and as we’ve discussed here before, a university is not an impartial third party.

      They have their own reputation they have to maintain (for stakeholders, recruitment, etc.), and have a strong incentive to come to a conclusion that is favorable to the university–but not necessarily favorable to fairness and justice.

    2. I still cannot fathom how we have gotten to the point of Universities investigating and trying criminal cases and somehow thinking that they aren’t bound by the same laws and requirements of any other government law enforcement body.

      1. Because they aren’t. Even in the most accused-protective regime you can imagine, the university can expel a student based on a preponderance of evidence, a standard lower than the BaRD standard in criminal cases.

        The fact that universities aren’t even meeting that lower standard doesn’t imply there isn’t one.

      2. When a religion really takes over a society you can tell once they set up shop in the justice system either in the courts themselves or as a parallel court ie the inquisitition, sharia law etc.

  2. I continue to believe that the Obama “Dear Colleague” letter that prompted universities to form these kangaroo courts was one of the worst things to come out of that administration. It put universities in an absolutely untenable position, forcing them to deal with matters that they are ill-equipped to handle. I understand the desire/value in protecting students, but this isn’t the way.

    There also seems to be a bit of confusion on exactly what the standard for consent is. Take this passage from the dissent:

    The record reflects the following evaluation by the Appeals Board: [“]Two witnesses who know [Roe] reported that they observed [Roe] drinking from the wine bag at [Doe’s] fraternity and also reported that they perceived she was intoxicated for a variety of reasons (very energetic when she’s drunk; inhibitions were lowered; and speech that was ‘not completely clear,’ contained ‘occasional slurs,’ and occasionally trailed off at the end of sentences).[“]

    But the test isn’t whether she was intoxicated; the test is whether she was too drunk to consent. Many of us can get to the point where are inhibitions are lowered, we occasionally slur, and trail off at the ends of sentences, but still appreciate the gravity of a particular decision. That she was merely drunk doesn’t tell us about her overall ability to consent, even if the drinks may have made her more prone to do so.

    1. And it’s not even ONLY whether she’s too drunk to consent. It’s whether it should have been apparent to Doe that she was too drunk to consent. Testimony that “oh yeah, if you know her you would know she was drunk” isn’t helpful. Would Doe have had any idea that she was too drunk to consent?

    2. “But the test isn’t whether she was intoxicated; the test is whether she was too drunk to consent.”

      There are activists that are deliberately trying to push the standard down to even the slightest intoxication = “too drunk to consent”

      If they succeed, guys will have to start carrying breathalyzers around with them.

      1. “There are activists that are deliberately trying to push the standard down to even the slightest intoxication = “too drunk to consent””

        Yup. Sometimes student housing has “Drunk Sex Is Rape” posters all over the place. And when the young ladies get drunk and consent to sex, they are understandably shocked when they go to file their Title IX complaints and are told that no, they were not in fact raped.

      2. If they succeed, guys will have to start carrying breathalyzers around with them.

        Nah, just do a shot yourself, and make sure to file your pre-emptive Title IX complaint in the morning before she gets up.

        After all, if the dude was “too drunk to consent” then clearly the young lady shouldn’t have had sex with him.

        1. “make sure to file your pre-emptive Title IX complaint in the morning before she gets up.”

          Of which a case from Cincinnati was reported at Reason back in May. A woman who had gotten a male student expelled for drunk-sex-is-UknowWhat, then slept with a friend of his. He got up the next morning, file a complaint against her, and she was suspended..

          She complained he did it for revenge. What? I’m shocked, shocked! The Reason writer suggested he did it out of fear she’d strike again.

          There are other reverse cases as well. Here’s a story on them from “The Atlantic.”

          1. “She complained he did it for revenge. ”

            And she wasn’t even allowed to make that argument at her hearing, because her previous complaint was deemed irrelevant.

    3. But please notice the inherent double standard in the whole “too drunk to consent” claim. A woman can be “too drunk to consent” to a sexual encounter, but a male who is equally or even more intoxicated is held to a completely different standard – no matter how intoxicated he gets, he has the obligation to say no. What would the University of Michigan do if the male, John Doe, filed a complaint against Roe for taking advantage of him while he was intoxicated, claiming that he would never have agreed to have sex with someone as unattractive as Roe unless his standards had been seriously undermined by alcohol? Who doubts that such a complaint would have been dismissed out of hand? Apparently, the demand for sexual equality only applies when it benefits females; when it might benefit males (who are, BTW, a minority on U.S. college and university campuses), calls for equality of treatment are rejected as a means of male oppression. What intellectually bankrupt BS!

      1. Actually, the small number of such cases that have occurred suggests that university Title IX offices are entirely enmeshed by their ideological preconceptions of (i) gender equality and (ii) “believe the complainant,” and they generally take the side of whichever party to an ambiguous drunken sexual encounter contacts them first.

      2. DjDiverDan: “What would the University of Michigan do if the male, John Doe, filed a complaint against Roe for taking advantage of him ”

        See my response to perlchpr immediately above. The trick has worked already, more than once.

  3. Let us never forget that fully 50% of r?pe accusations are false. The research is crystal clear. As for college students doing “it”, it’s what college students do – especially young women who are away from home (finally) and far from the parents paying for their libertine pursuits. I thankfully matriculated in the 1970s when female students would do anything for attention, including shuckin’ their duds. ~(?)~

    1. We have no idea how many rape accusations are false. There is no data supporting a 50% figure, nor is there any data supporting the much lower rates that gender studies departments fraudulently claim. The true figure is unknowable.

      1. Actually there is *some* evidence for each. Data presented in Crime in the United States (FBI) pretty consistently finds about 5% of such allegations were determined to be “unfounded” before the new definition of rape (to include too-drunk-to-consent) was adopted, a rate about five times as high as other FBI offenses. “Unfounded” means that an offense was judged to actually not have occurred, not just that there was no evidence to proceed.

        Here’s a good article on the FBI methods and findings.

        1. Generally the low rate the media likes to quote comes from counting only cases found definitively fraudulent as false rape while everything else is assumed to be 100% true.

          1. That’s true. The FBI’s 5% figure is only those found to be definitively false, excluding those for which it is unclear what happened, etc. So the actual number of false claims will be somewhere north of that.

            NOTE: Just to be clear, I’m not arguing that a false claim is a malicious claim. There are other possibilities as well.

            1. Yup. The 5% is arguably a floor, which means that the rate is between 5% and 100%. But it’s not an accurate floor, due to inconsistent definitions of “unfounded “.

              1. Not any more. Uniformity was required beginning in the early 2000’s. The link I provided above is to a research article that tested to determine if there was now consistency in methodology — and it found there was. The 5% figure (actually 5.5 to 5.7%, depending on whether you use the old or new definition of rape) is for the years 2006-2010.

                What I’d like to know is what % of cases were not “unfounded” but rather too unclear or mixed, etc., for a determination of guilt to be made. The figures certainly exist, and they are among the cases in the “actual” column, but they aren’t broken out. They would allow us to get a more precise range of estimates.

  4. It’s hardly surprising anymore when a big university is run by people who are either ignorant of or completely indifferent to the constitutional rights of the accused, especially when the accused is charged with violating the norms of the “diversity, equity, and inclusiveness” police, or, more accurately, the Victimhood Mafia. What did come as a surprise to me is seeing just how extensive and expensive this crazyness has become. Coincidentally, the American Enterprise Institute just published on its Carpe Diem Blog an accounting showing how many people are employed and what the University of Michigan pays for this band of morons who can’t figure out the Constitution – over $11.5 Million a year in salary and benefits (exclusive of administrative costs, like costs for office space, support staff, supplies, etc.

    (Commenting software won’t let me copy the link, as it recognizes it as a word longer than 50 characters, and I don’t know the workaround for that. Look for AEI’s Carpe Diem blog)

    1. You can’t directly copy-paste a link because of that length limit but you can embed the link using the format

      < a href="http://example.com/test_page">alias goes here< /a>

      but without the blank spaces after each < character. Note that the quotes around the URL are optional in many systems but they are required by the Reason commenting system.

  5. Thank you for using the word sex instead of the inappropriate ‘gender.’ Gender is a linguistic term – La plume de ma tante. Sex is male and female. The application of the word gender to the male/female distinction is a propaganda device – if you accept the term, you accept their assumptions.

  6. The answer for schools increasingly appears to be referral of every assault complaint, or even every incident in which evidence of assault — rape, hazing, sexual battery, whatever — is reported or observed, to non-campus law enforcement authorities.

    Schools that prefer to hide assaults — especially for depraved reasons — could be aided in finding their consciences by an appropriate statute.

    1. That is a reasonable answer, but the previous administration’s DOE and many Title IX activists rejected that, arguing that schools had a legal obligation to adjudicate such complaints.

      1. In addition to, not in replacement of, the structures of criminal law. RAK is right (this time) that some schools have, at times, sought to use the internal adjudication process to cover up these offenses.

    2. I don’t think we should simply say “Let the prosecutor decide”.
      The Uni can have (and, I would argue, should have) lower standards of proof.
      Just like a corp that fires someone for misconduct need not defer to the DA, neither should the uni.
      I think the point at issue is what process is due.

      1. Well, at the same time the corp shouldn’t react to credible evidence of criminal misconduct and try to cover it up rather than raising it with LE.

  7. Why don’t we just let schools teach? If there’s one thing anybody agrees on, it’s that school are doing a horrible job at adjudicating these assaults. And that’s not surprising, since universities are not law enforcement organizations. Unsurprizingly, schools are also doing a terrible job at providing mental health services.

    The answer, of course, is that there are tens of thousands of people getting paid tens of millions of dollars to do a horrible job of adjudicating sexual assault claims on campuses, and they are organized. Perhaps Janus will help, but I’m not optimistic.

  8. The Sixth Circuit notes that schools do not have to allow the accused to personally cross-examine the accuser but can instead have the accused’s representative do it – but the irony of that option is that schools generally have tried to stack the deck by refusing to allow accusers’ lawyers to participate in the fact-finding process.

  9. “Go to the police. Really anything that is against he law should be handled in this way.”

    I think this is the correct position. Short of allegations of cheating (or other issues dealing strictly with violations of the student code), any university administration is not qualified to investigate. Sexual assault is a serious crime, and it should be treated seriously. The local police department or sheriff’s office is better suited for these types of investigations.

    1. Once again:
      You are assuming that universities should apply the same burden of proof analysis that a prosecutor.
      The Dept of Ed–which should not even exist, but that’s for another day–should not prohibit universities from using a lower standard.

  10. “You are assuming that universities should apply the same burden of proof analysis that a prosecutor.”

    Public (government run) universities, should be bound to the same burden of proof analysis required in criminal proceedings.

Please to post comments

Comments are closed.