Editor's Note: Another win for due process on campus
The U.S. 6th Circuit Court of Appeals is making a name for itself as a defender of due process.
In its second decision within the last year related to campus sexual assault investigations, a panel of judges found that universities are undermining the constitutional due process rights of accused students in Title IX proceedings.
In this case, like so many others, two University of Michigan students (“John Doe” and “Jane Roe”) had attended a fraternity party, drank, danced and then had sex.
Doe thought it was consensual. Roe decided after the fact it wasn’t because she was too drunk to give consent and filed a complaint against him. The university did a thorough investigation, but in the end Doe faced sanctions, and fearing expulsion, he dropped out even though he was only 13.5 credits short of graduating. And then he sued, claiming the "university’s disciplinary proceedings violated the Due Process Clause and Title IX."
This decision is the most strongly worded yet and has a direct impact on what public universities here and in Kentucky, Ohio and Tennessee must do to bring their sexual misconduct policies into compliance.
It also shortly follows leaked news from the U.S. Education Department on how it plans to reshape Title IX campus guidelines. Education Secretary Betsy DeVos has made it a priority to overhaul these investigations and ensure all students are treated justly. Department officials have confirmed that one of the key changes will include cross-examination in the campus hearings.
That’s exactly what the appeals courts ruled last week:
“If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. Because the University of Michigan failed to comply with this rule, we reverse.”
While this court decision is being lauded by legal experts across the political spectrum as the right call, expect college campuses and their students to react differently.
It is the era of #MeToo, and the Women’s March.
Many college administrators are wedded to the policies they’ve put together in recent years that eroded the due process rights of accused students. And they were highly pressured to do that by the Obama administration and its “Dear Colleague” letters — or face financial consequences.
Campus cultures have grown accustomed to a framework that gives alleged victims most of the control, but it’s one that conflicts with guaranteed constitutional rights.
This latest decision is a win for due process, and universities are going to have to take it into account.