Title IX/College Disciplinary Practice - Warshaw Burstein LLP | <em >Doe v. Baum</em > 903 F.3d 575 (2018)
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  • Doe v. Baum 903 F.3d 575 (2018)
    11/12/2018
    Sixth Circuit holds that where the credibility of witnesses is in dispute and material to the outcome, due process requires a hearing and opportunity to cross-examine witnesses.

    Jane Roe accused John Doe of having sex with her at a party when she was too drunk to consent. Doe claimed there was no reason to believe Roe was too drunk to consent, or that his sexual advances were unwelcome.  The school conducted an investigation which boiled down to a he said she said question of credibility.  Doe and his frat brothers claimed she was not too drunk, while Roe and her sorority sisters claimed she was clearly incapacitated at the party.  No hearing was held, and instead the decision was based solely off the investigative report.  The report itself recommended finding in favor of Doe, but on appeal, the board found Doe responsible.  In support of this conclusion, the Board stated that in their view Roe and her witnesses were more credible than Doe and his witnesses.  This credibility determination was made on a cold record, without any live testimony, nor cross examination of witnesses.  Doe subsequently filed a lawsuit alleging violations of the Due Process Clause, and Title IX.  This was dismissed by the trial court, but here, the Circuit Court of Appeals reversed.

    The Sixth Circuit held that where the credibility of witnesses is in dispute and material to the outcome, due process requires cross-examination.  This is because being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life.  For example, the student may be forced to withdraw from classes, their personal relationships may suffer, and they may face difficulty obtaining educational and employment opportunities down the road.  In contrast, providing Doe with a hearing and opportunity to cross examine witnesses would have cost the university very little.  The University provides for hearings elsewhere, and so they already have all the resources it needs to facilitate this in sexual misconduct cases.  The court also held that universities have a legitimate interest in avoiding subjecting alleged victims to further harm.  This means that the accused student does not always have a right to personally confront his accuser, but instead universities can allow the accused student’s agent to conduct cross examination on their behalf.

    The court also reversed the dismissal of Doe’s Title IX erroneous outcome claim.  The allegation that the university did not provide an opportunity for cross examination even though credibility was at stake was sufficient to cast doubt on the outcome of the disciplinary proceedings.  The federal investigation into University of Michigan’s process for responding to sexual misconduct allegations, as well as negative media attention were alleged to contribute to bias against Doe based on his sex.  This, coupled with the Board crediting exclusively female testimony, while rejecting all of the male testimony was enough to allege a causal connection between the flawed outcome and gender bias.
    CATEGORY: Due Process