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6th Circuit: Accused Student Entitled to Confront Witnesses in Disciplinary Proceeding

Civil Rights and Liberties By Harvey Binnall PLLC - 2018/01/01 at 12:00am

The story is becoming increasingly familiar: a college student is accused of violating a school conduct policy and then railroaded through a disciplinary process without anything approaching traditional notions of due process. When the allegations involve sexual misconduct or sex-based discrimination under Title IX, the proceedings are often even more skewed against the accused. The 6th Circuit Court of Appeals, however, said that the University of Cincinnati went too far when it denied an accused student’s right to cross-examine his accuser.

In Doe v. University of Cincinnati, a college student, identified as John Doe, was accused of violating the student code of conduct after a sexual encounter with a female student, identified as Jane Roe. Doe claimed that the sex was consensual; Roe said that it was not and filed a complaint against him. At a hearing on the matter, Roe did not attend but submitted a signed statement, which was read to the hearing officers. Doe did not have a chance to pose any questions to his accuser—via cross-examination or otherwise. Doe was found responsible and suspended for two-years.

The Doe Court pointed out that accused students are entitled to due process, but not to the same extent as a criminal defendant at trial. Consequently, the process due is fact dependent and must be determined by each case’s particular circumstances.

When it comes to whether the accused has a right to confront witnesses or the accuser, the primary factor is whether the credibility of witnesses is in dispute. In this case, the complainant and the accused disagreed over whether a sexual encounter was consensual, thus the credibility of the two was at issue. As a result, the 6th Circuit held that UC’s procedures were insufficient, as they failed to provide Doe with any method of questioning Roe, either directly through cross-examination or indirectly through the disciplinary panel.

This case is an important step to protecting the rights of students in disciplinary proceedings, whether they be Title IX or otherwise. Regardless of how severe the allegations might be, sacrificing the sacred right to due process is never the answer. Every student is entitled to due process that provides him or her with the right to protect their education and their good name. Harvey & Binnall is proud to represent students across America who are accused of conduct and Title IX violations.