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.
