Challenge to Assault Probe Founders on Appeal

     CINCINNATI (CN) — Two former University of Cincinnati students tried to persuade a resistant Sixth Circuit panel on Thursday that their due-process rights were violated during hearings on sexual assault accusations against them.
     The male students, who sued anonymously last year, alleged the university failed to provide fair and impartial hearings after they were accused of sexual assault in separate incidents.
     One student was expelled, while the other was suspended but eventually earned his law degree, according to their complaint filed in Cincinnati federal court.
     The defendants in the case include the University of Cincinnati and several of its employees.
     The former students claimed the university maintained a bias against students accused of sexual assault to preserve federal funding, but the district court disagreed.
     It dismissed the complaint in March on grounds of qualified immunity, but also found a lack of merit in the plaintiffs’ claims.
     “It is not reasonable to infer that UC has a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding,” U.S. District Court Judge Sandra S. Beckwith wrote in her opinion. “Plaintiffs’ mere belief that defendants acted with such ulterior motives is insufficient to state a claim for relief.”
     The former students appealed the decision. On Thursday, their attorney Joshua Engel was peppered with questions by the all-female Sixth Circuit panel from the onset of his arguments.
     Circuit Judge Deborah L. Cook wondered how the former students’ due process rights could have been violated when each was afforded a second hearing following successful appeals.
     “Both of the hearings had inevitable results because of the biased nature of the university’s [disciplinary] process,” Engel answered.
     The attorney argued that his clients were not allowed to cross-examine their accusers, and that the university did not place the burden of proof on the accusers.
     Circuit Judge Julia Smith Gibbons reminded Engel that “case law [in disciplinary proceedings] does not require the same standards [as a criminal trial].”
     And while she acknowledged the differences, particularly in the methods of cross-examination, Judge Gibbons asserted that these differences do not necessarily deprive the accused of their due process rights.
     Attorney Evan Priestle, representing the University of Cincinnati and the employee defendants, countered Engel’s burden of proof claim in his arguments.
     He argued that in disciplinary proceedings, there is no burden of proof, and that “the board of inquiry looks at the evidence and decides whether the [university’s] code of conduct has been violated.”
     Throughout Thursday’s hearing, the panel seemed reluctant to reverse the lower court’s decision.
     “You want us to write a standard for the University of Cincinnati and all universities in the Sixth Circuit,” Senior Circuit Judge Martha Craig Daughtrey said, “when the university might just say, ‘we can’t handle this,’ and [send the matter] to the Cincinnati Police [and a] criminal court.”
     Engel argued that there are several “safe harbors” available to the panel to prevent such a scenario, but the panel would not budge.
     Judge Cook concluded Engel’s arguments for him, when she bluntly stated, “The law is against you on this.”
     No timetable has been set for the panel’s decision.

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