Is There a Right to Cross-examine in Campus Sexual-Assault Hearings?

When Brian Harris was found responsible for sexual assault and expelled from St. Joseph's University, he filed a complaint against the school, claiming he was denied an opportunity to "question and confront his accuser and witnesses to test their veracity and credibility" in violation of provisions in the student handbook and "basic due process" (Complaint, ¶¶ 55 and 82(k)).

Harris and other male college students accused of sexual assault have filed lawsuits, alleging that campus investigations and hearings are unfair and biased in favor of their accusers, depriving them of their right to due process.

As we discussed in our post on the standard of proof in disciplinary proceedings, many of these cases center on the credibility of the two parties. The specific question we'll look at in this post is whether in a conduct hearing a student accused of sexual assault has a right to "question and confront his accuser" under the Sixth Amendment to the U.S. Constitution, which reads:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …

The U.S. Department of Education has been clear that in campus sexual assault hearings allowing the accused to directly confront the accuser could cause more harm to the victim. ED's 2001 Sexual Harassment Guidance says "schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant." In its April 2011 Dear Colleague Letter, the ED is more specific:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

While the ED enforces Title IX compliance in responding to sexual assault complaints, it does not have the last word on the constitutional right to cross-examine witnesses in disciplinary proceedings where the accused faces expulsion. Federal courts have reviewed cases involving due process rights in student conduct proceedings and stopped short of requiring the right to cross-examine witnesses when a student faces expulsion, though the issue has not been finally decided.

Before his appointment as a U.S. Supreme Court Justice, Thurgood Marshall represented Alabama State College students who claimed a denial of due process because they were expelled for misconduct without a notice or hearing. The U.S. Court of Appeals for the Fifth Circuit agreed that due process required the school to give the students notice of and a hearing on the charges before they could be expelled. However, the court said the nature of the required hearing varied, depending on the circumstances. [Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, cert. denied, 368 U.S. 930 (1961)]

While the Dixon court concluded that a student misconduct hearing (such as one on sexual assault) would require more than a hearing on a failure to meet academic standards, it explained that "more" did not include the right to cross-examination:

By its nature, a charge of misconduct ... depends upon a collection of the facts ... [and] an opportunity to hear both sides in considerable detail ... This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses is required.

Citing the Dixon case with approval, the U.S. Supreme Court reviewed a case involving a 10-day suspension from high school and found the students were entitled to "some kind of notice and ... some kind of hearing," but the Court also acknowledged, without elaborating, that "[l]onger suspensions or expulsions ... may require more formal procedures." [Goss v. Lopez (1975) 419 U.S. 565, 579 and 584]

The U.S. Court of Appeals for the Second Circuit also cited the Dixon case when it acknowledged "[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings." [Winnick v. Manning (2nd Cir. 1972) 460 F.2d 545] Since Glen Winnick admitted that he participated in disruptive behavior in a classroom of students taking a final exam, the court said cross-examination of witnesses would not have changed the outcome and have "been a fruitless exercise." However, the Winnick court left open the possibility that "if a case of a substantial suspension of a state university student has resolved itself into a problem of credibility, 'cross-examination of witnesses might [be] essential to a fair hearing.'"

Following its Winnick decision, the Second Circuit again did "not find it necessary to decide the point" of whether students were entitled to cross-examine witnesses in a conduct hearing involving unauthorized use of a residence hall for a "sleep in." [Blanton v. State University of New York (2nd Cir. 1973) 489 F.2d 377] Again, the court left open the possibility that in student misconduct hearings where the central issue is whether to believe the accused or the accuser the right to cross-examine witnesses may be required.

In a case decided by the Eleventh Circuit Court of Appeals, two veterinary students who were accused of academic dishonesty sued their university for violating due process. They were not allowed to directly cross-examine adverse witnesses but were allowed to ask questions through the hearing officer. The court found, while due process required the university to allow the students to respond to the charges, due process didn't require cross-examination of witnesses since student "rights in the academic disciplinary process are not co-extensive with the rights of litigants in a civil trial or with those of defendants in a criminal trial." Therefore, the court concluded that there was no denial of due process. [Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664]

Finally, a U.S. District Court in New York found that a "higher level of formality to ensure fairness" was required to satisfy constitutional due process in a case where a male student accused of rape faced a two-year expulsion. The court described this "higher level" as:

At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel.

Absent a decision from the U.S. Supreme Court on this issue, the ED's position allowing questioning of adverse witnesses through the hearing officer — but not direct cross examination — does not violate constitutional due process.

Moreover, the ED's position is consistent with the policy of encouraging students to report incidents of sexual violence. The possibility of facing cross-examination by their assailants would discourage many victims from reporting sexual assault contrary to the goals of the Campus SaVE Act and the 2011 Dear Colleague Letter. These are laudable goals: protecting victims from secondary trauma, encouraging reporting, increasing accountability, reducing sexual assault, and making campuses a safer place to learn.