When the Sixth Circuit decided Doe v. Baum, holding that the accused in a Title IX campus sex hearing was entitled to examination by counsel, it was a breakthrough ruling. There was much to complain about its consequences, and complaints there were. It turned college sex tribunals into adversarial mini-trials, run by people lacking any of the competencies to manage it and creating the potential for an accuser to be subject to serious challenge.
While limited to the jurisdiction of the Sixth Circuit, it was the first time a court seriously challenged the reach of the squishy Matthews v. Eldridge due process test for quasi-judicial administrative proceedings. If you want to run a criminal-ish court, and impose extreme sanctions that have life-altering impacts, then suck it up and give the accused the chance to defend himself. It’s not an inquisition, no matter how strongly you believe Torquemada was right.
The decision put the screws to colleges, and to other circuits faced with the same situation. Courts were neither unaware nor insensitive to the problems created by compelling their sex courts to provide some due process like real courts, but if you want to expel a young man, cause him to forfeit the hundreds of thousand of dollars already paid in tuition, undermine his future toward which he worked for all those years of study, of practice, of sacrifice, then you’re just going to have to be minimally fair to him. And that meant allowing the accuser to be questioned.
But is there no compromise, no middle ground that will suffice for due process purposes while alleviating the burden on the school, the feelings of the accuser? The First Circuit’s decision in the UMass-Amherst case decided to go that direction, having the school, whether through its Title IX administrator or the legally-untrained but trauma-informed members of its sex panel, manage the cross.
No, they didn’t know the defense, what allegations were false. No, they didn’t have a grasp of relevance and materiality. No, they weren’t equipped to decide the defense strategy. No, they wouldn’t have a clue what follow-up questions should be asked based on the accuser’s responses, assuming they were substantive and responsive at all. But if they gave the appearance of asking some relatively rational questions, they gave the appearance of due process. Close enough, the court held.
This now created three options for addressing the due process deprivations of this subconstitutional system. Ignore due process concerns, and trivialize the harm by calling it just some dopey college disciplinary system that clearly wasn’t a criminal court because nobody went to prison. Recognize the harm by requiring meaningful cross-examination by someone qualified to do it. Or adopt a mechanism that emitted the faintest whiff of due process to the unwary while providing no substantive due process to the accused.
It’s one thing for circuit courts to take different positions. Circuit splits happen, and it’s often a precursor to the Supreme Court taking cert and deciding which circuit is right. It’s another when the issue isn’t merely circuit v. circuit, but the endorsement of a position comes from an organization that would ordinarily be expected to promote one view decides to throw its lot behind the compromise.
Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, concurred that the ruling puts forth a new standard for university investigators to consider both parties’ narratives before determining discipline.
The decision “will help protect students at the many institutions that offer no opportunity whatsoever for meaningful questioning,” she told The Fix in an email: “Despite the fact that the ruling was not favorable to the plaintiff on the facts of this case, I still consider it to be a positive precedent as far as students’ due process rights are concerned.”
In her own post about the decision, Sam Harris called it a “flawed but ultimately helpful ruling.” I suspect that her point is that it’s better to have an actual hearing where the accuser is required to appear and be subject to questions, any questions at all, by anyone at all, than none of the above. But as much as I respect Sam and the Foundation for Individual Rights in Education, endorsing this compromise is like giving a starving person a beautiful picture of a delicious meal rather than crumbs.
In fairness, Sam isn’t a trial lawyer, and so she might not have the experience to appreciate how this compromise creates the appearance of due process without the substance. To understand the efficacy of cross-examination, one has to do a cross-examination. What it looks like from a distance isn’t good enough, and this compromise, for the reasons already explained, will not accomplish its goal.
Sure, things are worse when the hearing consists of the Title IX investigator retelling her conclusions of guilt to the panel, but due process isn’t determined by comparison with its wholesale absence, but by its effectiveness. The problem is that FIRE has now given cover to a compromise that fails miserably to suffice. But hey, if FIRE says the compromise is positive, and FIRE is an advocacy organization that stands for the rights of students, then the compromise must be good enough.
There will be more arguments before circuit courts on the question of cross-examination, and the courts will be presented with caselaw from the Sixth Circuit by the accused and the First Circuit by the universities. The accused will argue that the circuit should adopt the Baum ruling, while the college will argue that the circuit should adopt the UMass ruling.
Ultimately, the attorney for the college will assert that its position, the UMass ruling, is the best choice because it alleviates the burden on colleges of having to face an adversarial hearing where the accused is afforded the real opportunity to defend himself from the accusations.
And, the court should note, that FIRE has taken the position that this compromise, that questions from the hearing panel, are sufficient to afford the accused with due process.
The circuit panel judges will nod their heads, noting that if it’s got FIRE’s endorsement, it must be good enough, taking shelter from the harsh choice created by Baum in the ineffective comfort of UMass’ compromise.