08-27-2019
In 2018, the Sixth Circuit Court of Appeals ruled that students accused of sexual misconduct at a state university have a due process right to cross-examine their accusers. As part of the ruling, the court made it clear that the accused must be able to directly question the accusers. The Department of Education has incorporated that holding into its proposed guidance on the issue.
The First Circuit Court of Appeals has diverged at least in part from that decision. In a case against the University of Massachusetts-Amherst, a female student made a complaint of sexual misconduct and assault against a male student. They were formerly in a relationship. A no-contact order was put into place, both parties violated the order, but the accused allegedly assaulted the accuser. He was placed on suspension before a hearing. Following a hearing, the accused was found responsible for the assault and violating the no-contact order, but was not found to have committed sexual misconduct. He was expelled (as this was his second finding of assault) and sued alleging his due process rights were violated because he was not able to cross-examine the accuser.
In reviewing the appeal from the district court, the First Circuit determined that the Sixth Circuit Court of Appeals had gone beyond what it agreed with by creating an unequivocal rule that the accused was to be allowed to cross-examine the accuser. According to the First Circuit, questioning by an independent panel could be sufficient to protect due process provided there was adequate questioning of the accuser, including into issues of credibility.