Doe v. University of Cincinnati, et al., No. 16-4693 (6th Cir.) September 25, 2017.

The University of Cincinnati conducts non-academic disciplinary reviews by committees of faculty and students.  Where sexual misconduct is alleged, the university office responsible for compliance with Title IX of the Education Amendments of 1972, 20 U.S.C. Section  1681, conducts an investigation, the results of which are presented to the Administrative Review Committee.

Currently, a student accused of sexual assault may question a complaining witness only if the witness appears at the hearing and only by means of submission of questions to the review committee which may in turn be posed to the complaining witness.  The university cannot compel a  complaining witness to attend the hearing.

John Doe and Jane Roe, both students at the university, met through an online dating application and engaged in sexual activity, which Roe alleged was not consensual, but which Doe asserts was.  Roe sought and obtained the university’s intervention.  After several months, a Title IX report providing statements was submitted to the hearing panel for its consideration.

Doe did not know that Roe would not appear at the hearing until the day it was convene. Doe objected to Roe’s account but was not afforded an opportunity to submit questions to the panel for its referral to Roe for responses.

The hearing committee suspended Doe for two years, later shortened to one year.

Doe sought and was awarded  in federal court preliminary injunctive relief  staying his suspension, a measure the Sixth Circuit Court of Appeals has upheld.  The appellate court has concluded  that the district court correctly found that Doe had a significant constitutionally cognizable liberty or property interest in his education which could not be denied without due process, which must provide some means of questioning an accuser.

Universities need not transform their processes to match those of criminal courts nor need they conform to all of the rules of evidence, but the absence of an opportunity to challenge accusers is constitutionally defective, the Sixth Circuit opined.  The constitutionality of the question filtration system the university offers — which was not employed in Doe’s case — was not challenged.  The Sixth Circuit noted that visual technology might be employed and be sufficient to permit confrontation.

What is not acceptable is the wholesale deprivation of an opportunity to question a complaining witness.  As the university must make determinations of truth, cross examination serves the university as well as the accused.  The right of confrontation entrenched n the nation’s law requires that some method of cross examination be available, although it need not be direct.

That Doe would suffer irreparable injury if the suspension were not stayed may be presumed, as constitutionally secured interests are in play.  That Doe’s education and reputation would suffer because of the university’s actions must be acknowledged.  The public interest is not compromised by requiring the university to afford due process protections:  “..while the public has a competing interest in the enforcement of Title IX, that interest can never override individual constitutional rights.”  Slip Op. at 19.

The Sixth Circuit opinion is more than a mere caution to school administrative:  it clearly signals it will not suffice to discipline students for sexual misconduct where the student has not had an opportunity to confront an accuser.  Sensitivity to an accuser’s psychology, which the university procedures display, does not men that confrontation may be abandoned.

Doe v. Univ. of Cincinnati (6th Cir.) September 25, 2017