Month: August 2021

32 Judicial Decisions Have Upheld Cross-Examination in Title IX Cases 

SAVE

August 31, 2021

American jurisprudence has long recognized the truth of  John H. Wigmore’s assertion that cross examination is “the greatest legal engine ever invented for the discovery of truth.” For these reasons, the 2020 Amendments to the Title IX regulation state: “…cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.” Section 106.45(b)(6)(i)

Unfortunately, certain groups are incorrectly claiming that the recent Victim Rights Law Center v. Cardona decision casts doubt on the overall importance of cross-examination. For example, the TNG recently recommended:

“If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” [emphasis added]

Below is a listing and key quotes from the 32 judicial decisions from 9 appellate courts and 23 trial courts that have affirmed the essentiality of cross examination. More information about these decisions is available HERE.

Appellate Court Decisions 

1. Doe v. University of Sciences, 961 F.3d 203, 214 (3d Cir. 2020) (reversing the district court’s order dismissing Doe’s complaint alleging a Title IX violation and breach of contract and fairness): “In other private-university cases, Pennsylvania courts have similarly determined that fairness includes the chance to cross-examine witnesses[.]”
2. Boermeester v. Carry, 263 Cal. Rptr. 3d 261, 279 (Cal. App. 2d Dist. 2020), as modified (June 4, 2020), reh’g denied (June 18, 2020), review granted and ordered not to be published, 472 P.3d 1062 (Cal. 2020) (finding that credibility was central to a determination of sexual misconduct): “In a case such as this one, where a student faces a severe sanction in a disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in-person hearing in which he may cross-examine critical witnesses to ensure the adjudicator has the ability to observe the witnesses’ demeanor and properly decide credibility. In reaching this conclusion, we agree with the prevailing case authority that cross-examination of witnesses may be conducted directly by the accused student or his representative, or indirectly by the adjudicator or by someone else.”
3. Doe v. Westmont College, 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019) (affirming the trial court’s writ of mandate setting aside Westmont’s determination and sanctions against Doe because of fairness issues): “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly . . . [t]he Panel denied John [Doe] that right.”
4. Matter of A.E. v. Hamilton Coll., 173 A.D.3d 1753 (2019) (Article 78 Proceeding – reversing the lower court’s order and directing respondents to adhere to the College’s published rules): 
   1. “Although the Policy states that both the complainant and the ‘individual whose conduct is alleged to have violated th[e] Policy’ are entitled to ‘be informed of campus judicial rules and procedures,’ the right to submit questions in writing to the accusers or witnesses is not explicitly mentioned anywhere in the Policy and was not mentioned in any communication to petitioner outlining the campus judicial rules and procedures.” Id. at 1755. 
   2. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right, we conclude that respondents’ failure to inform petitioner that he had such a right establishes that they did not substantially adhere to the College’s own published rules and guidelines requiring them to inform petitioner of all of the campus judicial rules and procedures.” Id. 
5. Doe v. Baum, 903 F.3d 575, 583 (6th Cir. 2018) (reversing district court’s dismissal for failure to state a due process claim): “Universities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that.  But in circumstances like these, the answer is not to deny cross-examination altogether. Instead, the university could allow the accused student’s agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker.” 
6. Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1071–72, 236 Cal. Rptr. 3d 655, 667 (2018) (finding that Doe’s case hinged on credibility and therefore his hearing should have included the opportunity to cross examine Jane): “CMC argues in the alternative that, even if under Regents John was entitled to question Jane indirectly, this was satisfied by CMC’s procedures ‘allowing [John] to submit questions for the Investigator to ask witnesses based on the PIR.’ Setting aside the issue that the investigator did not in fact ask any of John’s proposed questions to Jane, CMC’s argument ignores the Committee’s own need to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John. This was the very benefit to oral testimony underlying the holding of Cincinnati.”
7. Doe v. Univ. of S. California, 29 Cal. App. 5th 1212, 1234, 241 Cal. Rptr. 3d 146, 164 (2018) (finding that Doe was denied a fair hearing): “The same considerations underlying the holdings in Claremont McKenna, Baum, and Cincinnati apply here. Where a student faces a potentially severe sanction from a student disciplinary decision and the university’s determination depends on witness credibility, the adjudicator must have the ability to observe the demeanor of those witnesses in deciding which witnesses are more credible. This will typically be the case in disciplinary proceedings involving sexual misconduct where there is no corroborating physical evidence to assist the adjudicator in resolving conflicting accounts.”
8. Doe v. Regents of the University of California, 2d Civ. No. B283229, at *24 (Cal. Ct. App. 2d 2018) (reversing the trial court’s judgment denying Doe a writ of administrative mandate for fairness and procedural due process violations and remanding the case to the superior court with the direction to grant Doe’s writ of administrative mandate): “[T]he [Sexual/Interpersonal Violence Conduct] Committee inexplicably allowed Jane to decline to respond to John’s questions about the side effects of Viibryd on the ground that it was her ‘private medical information.’ This deprived John of his right to cross-examine Jane[.]”
9. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017) (citations omitted) (affirming district court’s order enjoining Doe’s suspension from University): 
   1. “Ultimately, the [University] must decide whether Doe is responsible for violating UC[incinnati]’s Code of Conduct: whether Roe’s allegations against him are true. And in reaching this decision [t]the value of cross-examination to the discovery of truth cannot be overemphasized. Allowing John Doe to confront and question Jane Roe through the [University sex misconduct hearing] panel would have undoubtedly aided the truth-seeking process and reduced the likelihood of an erroneous deprivation.” Id. at 404. 
   2. “[UC[incinnati] assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused. A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause. Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, cross-examination has always been considered a most effective way to ascertain truth.” Id. at 401

Trial Court Decisions 

1. John Doe v. Michigan State University, et al., No. 1:18-CV-1430 (W.D. Mich. Sep. 1, 2020) (denying the university’s MTD because Doe plausibly claimed a constitutional due process violation):
   1. “Hence, consistent with how Plaintiff has framed the proposed class in this case (‘All MSU students and/or former students … subjected to a disciplinary sanction … without first being afforded a live hearing and opportunity for cross[- ]examination of witnesses’), Plaintiff’s procedural due process claim is specifically based on his claimed right to ‘a live hearing and cross-examination.’” Id. at *12-13.
   2. “In short, at this pleading stage, taking the facts as true and reading all inferences in Plaintiff’s favor, Plaintiff has plausibly demonstrated a violation of a clearly established right.” Id. at *15.
2. Messeri v. DiStefano, 480 F. Supp. 3d 1157, 1165 (D. Colo. 2020) (holding a reasonable factfinder could find that University’s failure to provide Messeri with a neutral arbitrator violated his procedural due process): “As examined above in Part III.B.1, Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The University’s interests in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘convert[ing] its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.”
3. Doe v. University of Michigan, 448 F. Supp. 3d 715, 728 (E.D. Mich. Mar. 23, 2020) (granting Doe’s motion for partial summary judgment and denying the university’s MTD on constitutional due process grounds): “From its inception to the University’s appeal in Baum, the 2018 Policy was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was  ‘essential to due process’ only where the finder of fact must choose ‘between believing an accuser and an accused,’ and implored universities to provide a means for decision makers ‘to evaluate an alleged victim’s credibility.’ Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a ‘disturbing…denial of due process.’ Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity.” 
4. Averett v. Hardy, No. 3:19-CV-116-DJH-RSE, 2020 WL 1033543, at *7 (quoting Baum, 903 F.3d 575, 582) (denying MTD due process claim against university administrator): “Averett … alleges that his inability to access exculpatory evidence until the day of the hearing impaired his ability to effectively cross-examine witnesses. When sexual misconduct is alleged and the credibility of antagonistic witnesses plays a central role, ‘[c]ross-examination is essential…. it does more than uncover inconsistencies—it ‘takes aim at credibility like no other procedural device.’ U of L has a strong interest in handling allegations of sexual misconduct in a fair manner.”
5. Doe v. University of Connecticut, No. 3:20CV92 (MPS), 2020 WL 406356, at *5 (D. Conn. Jan. 23, 2020) (granting Doe’s TRO against the university on constitutional due process grounds): “Here, however, the Plaintiff was denied even the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely. Given UCONN’s reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.”
6. L.M. v. S. Ill. Univ. at Edwardsville (SIUE), No. 18-cv-1668-NJR-GCS, 2019 U.S. Dist. LEXIS 192800, at *7-8 (S.D. Ill. Nov. 6, 2019) (denying MTD for failure to state due process claim): “The Complaint … does not clearly delineate what allegations relate to a substantive due process claim. L.M. appears to be alleging that the Procedures and Policies violate substantive due process because they did not allow counsel to conduct direct examination of L.M. or cross-examination of C.M., and because counsel could only submit written questions in advance … Defendants have not cited to authority demonstrating why this particular allegation fails to state a substantive due process claim. Thus, L.M.’s substantive due process claim will not be dismissed at this stage of the proceedings.” 
7. Doe v. Cal. Inst. of Tech., 2019 Cal. Super. LEXIS 10956 (holding that the administrative procedure provided to Doe was unfair and requiring the sanctions against Doe be set aside): 
   1. “We hold that where, as here, John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by John or the Committee itself. That opportunity did not exist here.” Id. at *15. 
   2. “The credibility of the complainants, multiple adverse witnesses, and Petitioner was at issue. At least one of the complainants, ‘SURF,’ chose not to participate in the investigation. Nonetheless, the investigators credited her complaint over Petitioner’s response based on interviews with other witnesses.” Id. at *17.
8. Norris v. Univ. of Colorado, Boulder, 362 F. Supp. 3d 1001, 1011 (D. Colo. 2019) (Denying MTD for failure to state a Title IX claim): “Plaintiff notes he does not simply disagree with the Investigators’ findings, but instead his Complaint sets forth a litany of grievances which he argues denied him of a fair and impartial process. In part, Plaintiff disputes the University’s actions of: … denying Plaintiff the right to cross-examine his accuser … precluding Plaintiff from questioning witnesses” 
9. Doe v. University of Mississippi, 361 F.Supp.3d 597, 611 (2019) (holding that Doe had raised plausible claims of sex bias and due process violations): “Because neither Roe nor any other witnesses against Doe appeared at the hearing, he was not permitted to cross-examine – either directly or through written questions submitted to the hearing panel – the witnesses whose accounts of the evening led to his discipline.”
10. Doe v. White, No. BS171704 (Cal. Sup. Ct. Feb. 7, 2019) (Order setting aside Doe’s expulsion): “John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by John or the Committee itself. That opportunity did not exist here.” 
11. Doe v. The Trustees of the State of California, No. BS167329, at *10 (Cal. Sup. Ct. Feb. 5, 2019) (granting Doe’s writ of mandate for lack of fairness during the adjudicative process): “Petitioner never had an opportunity to ‘cross–examine [Roe 2], directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.’”
12. Doe v. University of Southern Mississippi, et al., 2:18-cv-00153-KS-MTP (S.D. Miss. Sep. 26, 2018) (granting Doe a preliminary injunction on due process grounds):
    1. “Thus, while the Fifth Circuit has not held that cross examination is required, it has certainly never held that it is strictly prohibited. This Court finds that this is a case where cross examination is warranted because such a procedural safeguard would have lessened the risk of an erroneous deprivation.” Id. at *8. 
    2. “[Doe] could not know whether the summary was correct because he never heard the testimony in the first place. Writing a rebuttal after the testimony is complete is not the same as cross examination, which provides the opportunity to assess the person’s demeanor when asked certain questions and flesh out inconsistencies in a search for the truth.” Id. at *9. 
13. Doe v. Pennsylvania State University, 336 F. Supp. 3d 441, 450 (M.D. Pa. Aug. 21, 2018) (denying defendant’s motion to dismiss regarding Doe’s due process claim): “Mr. Doe’s main objection to this paper-only Investigative Model is that it prohibited him from telling his story directly to the panel, and from challenging Ms. Roe’s version of events before that panel . . . [i]n a case like this, however, where everyone agrees on virtually all salient facts except one—i.e., whether or not Ms. Roe consented to sexual activity with Mr. Doe—there is really only one consideration for the decision maker: credibility. After all, there were only two witnesses to the incident, with no other documentary evidence of the sexual encounter itself. As a result, in this Court’s view, the Investigative Model’s virtual embargo on the panel’s ability to assess that credibility raises constitutional concerns.” 
14. Roe v. Adams-Gaston, No. 2:17-CV-945, 2018 WL 5306768 (S.D. Ohio Apr. 17, 2018) (granting a preliminary injunction):
    1. “Roe did not lose her right to cross-examine the complainants by simply admitting that she engaged in sexual conduct with the complainants.” Id. at *9.
    2. “But the hearing officer made those credibility determinations without the benefit of observing Roe (or anyone else) cross-examine the complainants—the only individuals present, other than Roe, when the purported sexual misconduct occurred.” Id. at *10.
    3. “Given the central role cross-examination has played as a truth-seeking device in our justice system, and given that Defendants have not identified any authority supporting their position, the Court cannot conclude that a pre-hearing investigative process, such as OSU’s, is a constitutionally adequate substitute for cross-examination.” Id. at *11.
    4. “In the absence of an injunction, Roe would continue to be expelled and suffer significant reputational harm based on the outcome of hearings in which she was denied the opportunity to cross-examine adverse witnesses.” Id. at *14.
15. Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018 WL 1474531, at *15 (D. Or. Mar. 26, 2018) (denying defendant’s MTD regarding Doe’s due process claim and 14th Amendment equal protection claim): “Plaintiff alleges significant and pervasive flaws in the procedures used to investigate and adjudicate Roe’s allegations, including that the University denied him a meaningful opportunity to cross-examine and confront witnesses . . . relied on an undisclosed expert whose report plaintiff never had the opportunity to refute[.]” 
16. Gischel v. Univ. of Cincinnati, S.D. Ohio No. 1:17-CV-475, 2018 WL 9944998, at *8 (S.D. Ohio Jan. 23, 2018) (denying MTD for failure to state a Title IX claim): “Significantly, Gischel was denied the opportunity to cross-examine [Accuser] about her level of intoxication because the ARC panel refused to ask [Accuser] the questions Gischel had submitted on the topic.” 
17. Doe v. Ohio State Univ., 311 F. Supp. 3d 881, 892 (S.D. Ohio 2018) (quotations omitted) (denying university MSJ): “In the context of student disciplinary hearings, cross-examination is essential to due process, … in a case that turns on a choice between believing an accuser and an accused. Here, John Doe couldn’t effectively cross-examine Jane Roe on a critical issue: her credibility, and specifically, her motive to lie. This particular situation may indeed demand the procedural protection of the university either correcting a false statement or providing the accused with the necessary information to impeach a critical witness.” 
18. Doe v. Ainsley Carry et al., Case No. BS163736, at *14 (Cal. Sup. Ct. Dec. 20, 2017) (holding that USC did not provide a fair, neutral, and impartial investigation): “[Title IX investigator] Noonan never offered Petitioner an opportunity to submit questions to Roe. In fact, Noonan informed Petitioner that ‘this is not the discovery process’ and would not permit Petitioner to take notes during his interview, precluding Petitioner from drafting any questions to Roe at his meeting with Noonan.”
19. Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017) (finding that the University’s adjudicative hearing was prejudicial towards Doe): “The EA [External Adjudicator] appears to have misunderstood the policy allowing Petitioner to suggest additional questions to be asked in response to the Title IX Coordinator’s determination. The EA did not analyze whether the questions were appropriate and should be posed to Roe. Further, Respondent appears to have told Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule. Petitioner was unable to ask the EA to pose questions to Roe at the hearing. It is entirely unclear whether the EA would have made the same credibility determinations had Roe been questioned. The court finds that cumulatively, these conditions were prejudicial to Petitioner and denied him a fair hearing.”
20. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017) (denying defendant’s MTD regarding plaintiff’s Title IX erroneous outcome claim): “Here, Plaintiff has adequately alleged facts that plausibly support at least a minimal inference of gender bias on the part of HWS. The allegations which support that inference include the following . . . alleg[ing] that his disciplinary proceedings put him at a disadvantage as compared to Jane Roe. For example, Plaintiff points to the fact that, during the proceeding, he was not allowed . . . to cross-examine Jane Roe[.]”
21. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017) (granting Nokes’ motion for a preliminary injunction against defendants on procedural due process grounds): “John Nokes was never able to test the roommate’s memory or credibility, including any improper motives for testifying as such.”
22. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016), adhered to on denial of reconsideration, D.N.J. No. CV 16-471 (KM) (JBC), 2017 WL 1508177 (D.N.J. Apr. 25, 2017), and aff’d in part, remanded in part, 699 Fed. Appx. 129 (3d Cir. 2017) (denying MTD for failure to state a Title IX claim): “The Complaint [alleges] that ‘[a]s a purported female victim, the Accuser’s allegations against the male plaintiffs were accepted as true without any investigation being performed and without the development of any facts or exculpatory evidence.’ And the Complaint does allege that Collick and Williams were not given the opportunity to respond or explain themselves, did not receive proper notice of the specific charges, were not permitted to confront or cross-examine their accuser, were not given a list of witnesses against them, and more generally were not afforded a thorough and impartial investigation.” 
23. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014) (denying the University’s MTD on First Amendment grounds seeking injunctive relief): “Neither Angela Gould nor Onna Gould was present at the hearing, and the only evidence presented by the university was the unsigned, two-page list of events which was allegedly lodged by Onna Gould.”