Risky Business Indeed….

John Doe and Jane Roe (not their real names!) met at a fraternity party at the University of Michigan. The theme of the party was “Risky Business,” which turned out to be prophetic.  I suspect you sharp readers already know where this story is headed.

Yes, they had sex.   Yes, there was a considerable amount of alcohol involved.  Yes, she claimed rape. Yes, he said it was consensual.  The frat bros supported Mr. Doe’s story. The sorority sisters supported Ms. Roe’s.

The school deployed an investigator who interviewed the two parties along with 23 other witnesses. The investigator found in favor of John Doe and recommended that the university should not take disciplinary action against him.

Ms. Roe appealed this recommendation to the Appeals Board, which reversed the decision. The Appeals Board ruled that Mr. Doe had engaged in sexual misconduct. The next phase was the determination of punishment.  “Facing the possibility of expulsion,” the court tells us, “Doe agreed to withdraw from the university. He was 13.5 credits short of graduating.”

Doe filed the lawsuit against the university claiming that its procedures violated the Constitution and Title IX.  He made note of the fact that the Appeals Board made its decision after two closed door sessions. The Board interviewed no witnesses and considered no new evidence. It just determined that the investigator came to the wrong conclusion.  In particular, Mr. Doe complained of the fact that he never had the opportunity to cross-examine Ms. Roe.

The 6th Circuit Court of Appeals held that the University violated Mr. Doe’s right to due process by denying him the opportunity to cross-examine.   The court noted that this was a situation in which credibility of witnesses was a critical factor. Key Quote:

If a public university has to choose between two 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.

The court also held that Mr. Doe had alleged a plausible Title IX violation. The theory Doe offered was that the university had reached an erroneous outcome because of his sex.  The suit alleges that the university was under pressure from the federal government, media and advocacy groups to be more responsive to complaints from females of sexual harassment.  The court held that there was enough there to allow this claim to go forward. For example, the court noted that the Board discredited all of the male witnesses and gave credence to the women.  The initial investigator who actually interviewed all these witnesses found in favor of Doe, but the Board “by contrast, made all of these credibility findings on a cold record.”

This is an important decision from a high level court, but it does not have major implications for Texas public schools.  The decision is about due process in higher ed, and specifically in sexual misconduct cases.  However, I feel sure that the folks in the Department of Education will study this case carefully. DOE is about to issue new regulations for Title IX.  This case strongly suggests that those regulations will have to include a right of cross-examination as an element of due process.

All of us will be impacted by the new Title IX regulations, as they will apply to K-12 public schools as well as colleges and universities. So stay tuned.

The case is Doe v. Baum, decided by the 6th Circuit Court of Appeals on September 7, 2018.  We found it at 2018 WL 4265634.


Tomorrow: Can you bar a board member from the football game?