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August 15, 2019

Federal Appellate Courts Recognize the Right to Cross-Examination in Campus Title IX Proceedings: A Summary


Patricia Hamill and Lorie Dakessian

Two federal appellate courts have held that in campus Title IX cases that involve serious alleged misconduct, a fair disciplinary process must include live hearings and cross examination:

  • Doe v. Baum: The Sixth Circuit held that schools must allow the accused student or his representative to conduct questioning.
  • Haidak v. Univ. of Massachusetts-Amherst: The First Circuit agreed that “the complete absence of any examination before the factfinder [is] procedurally deficient.” It also held that schools could satisfy their obligations through “real-time questioning” by a neutral factfinder.

When it comes to public institutions, these protections are part of an accused student’s right to notice and a meaningful opportunity to be heard before unbiased decision makers. In both of these cases — just like hundreds of other lawsuits filed in recent years — the plaintiffs were male students whose schools found them responsible for sexual misconduct involving a female student. These cases come with high stakes, including being excluded from and denied the benefits of their education. Governmental pressure on education institutions has led to campus disciplinary systems inherently rigged against the accused.

Real-time cross examination is paramount for both parties to explore and test each other’s accounts. Without it, the accused does not have an opportunity to probe the witness’s story, test their memory, or uncover ulterior motives. The written question process is constrained, not allowing parties to effectively address new points as they surface.

“A school cannot both tell the student to forgo direct inquiry,” insisted the Haidak Court, “and then fail to reasonably probe the testimony tendered against that student.” A university official refused to submit over half of plaintiff Haidak’s proposed questions to the Hearing Board, preventing it from knowing his questions and deciding whether to ask them. The university created the possibility that no one would effectively confront the complainant’s accusations. Ultimately, however, the Haidak Court came to the conclusion that the Board avoided the pitfalls created by the university and conducted a fair hearing.

Colleges and universities need to ensure neutral decisionmakers and real-time cross-examination of complainants’ testimony; measures that lead to reliable outcomes in Title IX procedures that benefit complainants and respondents. Since early 2018, over a dozen other state and federal courts have permitted accused students to sue their schools after they were not given the opportunity to cross-examine their accusers.

The above summary just scratches the surface of the two federal appellate court cases and the importance of cross-examination. Learn more here.