Rules of Interrogation: Title IX and the Opportunity to Cross-Examine Complainants

BACKGROUND

Title IX, passed as part of the Educational Amendments of 1972, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Three Supreme Court decisions during the 1990s interpreted Title IX to require schools to respond adequately and appropriately to incidents of sexual harassment and violence perpetrated against students.

In 2011, the Department of Education’s Office of Civil Rights (“OCR”) issued what is referred to as a “Dear Colleague” letter, which provided guidance to schools and reminded them of their obligation to address incidents of sexual assault as civil rights matters under Title IX. In this letter, the OCR under the Obama administration made recommendations regarding procedures schools should follow when addressing a Title IX complaint. One procedural recommendation by the OCR was to discourage allowing parties to personally question and cross-examine each other during a hearing on alleged sexual violence. The OCR reasoned that this method may be “traumatic or intimidating” and would potentially foster a hostile environment. Additionally, schools are not required to allow cross-examination of witnesses.

Most recently, the Department of Education under Betsy DeVos and the Trump administration has announced its intention to issue sweeping changes to the rules governing campus sexual assault. One of the major rules proposed through the early 2019 notice-and-comment procedure was a requirement that schools allow cross-examination of those alleging sexual harassment or assault.

THE ISSUE

In sexual misconduct cases, are schools required to provide a respondent with the opportunity for live cross-examination of the complainant and his or her representatives?

THE SPLIT

In 2018, the Sixth Circuit heard the case Doe v. Baum (2018). John Doe, the plaintiff and initial respondent in a sexual misconduct investigation at the University of Michigan, filed suit after the case made its way through the university’s appeals process. When the investigation was resolved in the complainant’s favor, Mr. Doe voluntarily withdrew from the university but later claimed that the university’s disciplinary procedures were in violation of both the Due Process Clause and Title IX. His argument was that, because the university’s decision turned on a finding of credibility, the school should have been required to provide him with the opportunity to cross-examine the complainant and witnesses. The Sixth Circuit reversed the district court’s decision and held that the University of Michigan did violate the student’s right to due process by failing to afford him the right to cross-examine the complainant and witnesses.

Relying on the decision in Baum, a respondent in a sexual assault investigation at the University of Massachusetts-Amherst filed suit after the university held a hearing and eventually expelled him. The respondent, Mr. Haidak, argued that his rights under Title IX and the Due Process Clause were violated because the university did not provide him with the opportunity to interrogate the complainant. In a split from the ruling in the Sixth Circuit, the First Circuit held in Haidak v. University of Massachusetts-Amherst (2018) that it is not a categorical requirement that schools must provide respondents with the opportunity to cross-examine the complainant, either directly or through a representative. The court explained that a school’s decision to examine the witnesses and parties by using a neutral factfinder would not be so fundamentally flawed in its procedure as to deprive the respondent of their right to due process. The Court reasoned that requiring the right to the kind of cross-examination demanded by Mr. Haidak would cause the disciplinary proceedings to essentially mirror a common law trial, which the First Circuit deemed unnecessary.

LOOKING FORWARD

Title IX administrators anticipate publication of the finalized regulations any day now. The proposed regulations relied heavily on the Baum decision and procedural requirements as outlined by the Sixth Circuit, conflicting with the First Circuit in Haidak. It remains to be seen what procedures will be required by the final Title IX regulations, but it is unlikely we will see any shift away from the rationale and procedures as outlined in Baum.

Educational institutions in the First Circuit will be forced to take into account both the Haidak decision and the new regulations when updating their Title IX policies. Additionally, many universities utilize the method of fact-finding supported by Haidak, which allows for a neutral party to interview the complainant and respondent. The split between the First and Sixth Circuits coupled with the introduction of the new Title IX regulations by the Department of Education will force different institutions to follow different sets of rules depending on the jurisdiction in which they are located. Various Title IX cases are awaiting trial or adjudication across the country, and experts are eager to find out which of the procedural frameworks appear to be the standard. With these rulings, it is becoming increasingly more likely that the Supreme Court will be forced to consider the Title IX procedures.

For further reading, see: First Circuit Splits from Sixth Circuit and Education Department on Title IX (2019), OCR Is About to Rock Our Worlds (2020) by Brett A. Sokolow, and 5 College Title IX Lawsuits to Watch (2019) by Jeremy Bauer-Wolf.