The Volokh Conspiracy
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In Doe v. Baum (2018), the Sixth Circuit held that the Due Process Clause secures a right to cross-examine witnesses in public university disciplinary proceedings, at least where the witnesses' credibility is at stake. In Tuesday's Doe v. Univ. of Mich., 2020 WL 1433848, Judge Arthur J. Tarnow (E.D. Mich.) followed this and built on it. First, the simple application of Doe v. Baum to the old 2018 Policy:
To be entitled to summary judgment on his Due Process claim, Plaintiff has to prove that there is no genuine dispute as to the following material facts: (1) he was accused of misconduct; (2) a finding of guilt would have lead to the deprivation of a protected Due Process interest; (3) the facts of his case placed credibility at stake; (4) he was deprived of a live hearing with an opportunity to cross-examine witnesses.
There is no dispute that (1) on March 20, 2018, a female student accused Plaintiff of sexual assault in violation of the University's sexual misconduct policy; (2) a finding of guilt could have resulted in a serious sanction such as suspension or expulsion; (3) since there were no witnesses to the incident in question, a finding would have to be based on a credibility determination; (4) Defendants subjected Plaintiff to an investigation under the 2018 Policy that did not afford him a live hearing with cross-examination. Accordingly, Plaintiff is entitled to judgment as a matter of law on his due process claim.
Second, more application plus a bit of further development, as to a later policy that the University had revised in light of Doe v. Baum:
By providing accused students with an opportunity for a hearing and cross-examination in front of a neutral officer, the University's Interim Policy is closer to complying with the requirements of due process than the 2018 Policy. However, some aspects are still in need of revision for full compliance.
First, the condition under which a hearing is required under the policy is vague. It merely states that a hearing will be provided "where warranted," without further explanation. The Sixth Circuit is clear that a hearing is warranted when a fact finder "has to choose between competing narratives to resolve a case." The University's Interim Policy should be similarly clear in order to dispel confusion and hold their administration accountable to provide a fair process in every case. An accused student's rights must be guaranteed—not left open for interpretation.
Second, the Interim Policy allows the University to impose serious interim sanctions without a hearing. These sanctions can be imposed after a complaint is filed, but before any determination of responsibility has been made. They range from a no contact directive to a suspension. Imposing a suspension, prior to a hearing and adjudication is unconstitutional. "[I]f a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension." Doe v. Baum. The University may not include suspension as an available interim measure against an accused student.