Sixth Circuit Rules for Students Accused of Sex Misconduct

CINCINNATI (CN) – In a decision that could change how colleges handle sexual assault and misconduct cases, the Sixth Circuit ruled that university officials must give accused students the opportunity to cross-examine witnesses.

On Friday, the Cincinnati-based appeals court overturned a federal judge’s ruling against a John Doe plaintiff who claimed University of Michigan officials violated his due-process rights by siding with a young woman who accused him of sexual assault after they met in January 2016 at a “Risky Business” themed fraternity party at his home.

The Sixth Circuit concluded that the stigma of being identified as a sex offender outweighed the cost to the university in allowing cross-examinations. The University of Michigan already allows them in all other kinds of misconduct cases, U.S. Circuit Judge Amul Thapar noted in the 16-page decision.

Doe’s accuser – identified in court papers as Jane Roe – filed a sexual misconduct complaint shortly after the incident, alleging she was too drunk to consent to sex after the pair went upstairs to the young man’s bedroom. Doe counters, however, that the sex was consensual and she did not appear drunk.

After Roe filed a sexual misconduct complaint with the university, its appeals panel overruled an investigator who recommended that they close the case. On the verge of expulsion, Doe withdrew from the university. He was 13.5 credits away from graduating with a business degree.

He filed a civil complaint against the university in September 2016 alleging a violation of his due-process rights and gender discrimination. U.S. District Judge David Lawson in Michigan granted Roe’s motion to dismiss the case. Given the circumstances, it was not important for Doe to cross-examine Roe and her witnesses, Lawson found.

But Judge Thapar, a Donald Trump appointee writing for the three-member Sixth Circuit panel’s majority, disagreed. He found that if a university’s decision in a sexual misconduct case turns on the credibility of witnesses, then cross-examination is required.

The ruling applies to the four states in the Sixth Circuit: Michigan, Ohio, Tennessee and Kentucky.

“Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted,” Thapar wrote. “So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”

The court also found Doe’s Title IX discrimination claims plausible at this stage. Thapar noted that the Obama administration had pressured schools to take sexual misconduct claims more seriously and that millions of dollars in federal aid was on the line for noncompliance with discrimination laws.

In addition, the Sixth Circuit majority noted that officials appeared to give more weight and credibility to the all-female witnesses on Roe’s side than the all-male witnesses on Doe’s.

“When viewing this evidence in the light most favorable to Doe, as we must, one plausible explanation is that the board discredited all males, including Doe, and credited all females, including Roe, because of gender bias,” Thapar wrote.

Dissenting U.S. Circuit Judge Ronald Lee Gilman agreed that students should be able to cross-examine witnesses. However, he argued that the panel went too far by stating that if someone alleging misconduct was uncomfortable facing the accused, a representative could stand in the accused’s place.

“If so, then this expanded right of cross-examination conflicts with our case law making clear that a student has no constitutional right to have an attorney actively participate in his disciplinary hearings, except in very limited circumstances,” Gilman wrote.

The judge said he would have rejected Doe’s discrimination claims because he did not make clear the university had judged the credibility of his witness’ statements “simply because they were men.”

The plaintiff’s attorney Deborah Gordon welcomed the appeals court’s decision and said it built on a similar ruling from the same court in Doe v. University of Cincinnati.

Gordon called Friday’s ruling a “very important” decision that clarified what University of Michigan must do before expelling an accused student or forcing them to withdraw.

“I think the Sixth Circuit here has been very strong and clear in telling us what those parameters are,” Gordon said Monday in a phone interview.

University of Michigan spokesman Rick Fitzgerald said the university is reviewing the court’s decision.

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