Do you have to permit cross-examination in a Title IX disciplinary hearing?

I think a “trigger warning” may be in order before you read the 5th Circuit’s decision in the case involving the “one and only interaction” between the two Aggie sophomores who met through a dating app. That one interaction involved three discrete sexual activities.  The female student alleged that she willingly participated in the first; was forced into the second act; and engaged in the third act out of fear of what might happen if she didn’t.  The University gave notice to the male student of the allegations, and conducted a hearing before a panel of administrators.

The panel concluded that the male student violated A&M policy with regard to that second sexual act.  He was suspended for a semester.  After that he returned to TAMU and graduated in 2019. Then he sued the university and several administrators alleging sex discrimination and an infringement of his constitutional right to due process.

The case is not over, but last month the 5th Circuit issued an interlocutory order that addresses an important legal point with regard to due process standards. How much due process was the student entitled to under these circumstances?  It’s a university case, rather than a K-12 case, but the court’s decision will influence how public schools handle similar situations.

The sticking point was cross-examination.  Both students were present for the disciplinary hearing and the female student “described her allegations in detail.”  The male student was represented by an attorney who wanted to cross-examine the other student. He was not allowed to.  Instead, the panel allowed the male student to “submit an unlimited number of written questions, subject to the panel’s determinations on relevancy and non-harassment.”

Is that sufficient to provide constitutional due process in this type of proceeding? The 5th Circuit held that it was.  Key Quote:

Van Overdam [male student] received advance notice of Shaw’s [female] allegations against him. He was permitted to call witnesses and submit relevant, non-harassing evidence of his innocence to a neutral panel of administrators. He was represented by counsel throughout the entirety of his disciplinary proceeding.   He had the benefit of listening to Shaw’s description of the allegations directly. And he and his attorney had the opportunity to submit an unlimited number of questions to the disciplinary panel.

This will be a published decision, meaning that it will establish binding precedent for courts in the 5th Circuit.  It’s Van Overdam v. Texas A&M University, decided on August 9, 2022. 


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Tomorrow:  the “offensive and insensitive” student activity.