The 6th Circuit Court of Appeals handed on Friday a major victory to those who believe the nation's universities have trampled on the rights of those accused of sexual assault
It ruled universities must have a live hearing with the chance for a person accused of sexual assault - or their attorney - to directly cross-examine the person accusing them.
"This is, without a doubt, the strongest ruling for the rights of the accused in any case across the country," said said KC Johnson, the co-author of "The Campus Rape Frenzy: The Attack on Due Process at America’s Universities."
The court, continuing down the road it has taken in earlier cases, used a case against the University of Michigan to clearly spell out its expectations for how schools should handle these situations. The ruling has the potential to force massive change in the universities in the states covered by the federal court — Michigan, Ohio, Kentucky and Tennessee — and possibly across the nation.
"This is a huge victory for constitutional rights," said Deborah Gordon, the attorney for the male student who filed the suit against U-M. "In a sexual misconduct case, where a student’s reputation, educational future and safety are at stake, getting at the truth is imperative for both sides – the accuser and the accused. For reasons they have never explained, the University of Michigan has refused to allow any form of cross-exam in these cases, while providing it in all situations."
U-M spokesman Rick Fitzgerald said the university was "carefully reviewing" the ruling.
The ruling mirrors the way the federal Department of Education appears to moving. In draft regulations uncovered by the New York Times earlier this month, one of the key changes included was mandating these hearing and cross-examination.
The court was unambiguous in its ruling.
"Today, we reiterate that holding once again: 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," the court wrote.
"Our circuit has made two things clear: (1) if a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension, and (2) when the university’s determination turns on the credibility of the accuser, the accused, or witnesses, that hearing must include an opportunity for cross-examination
"Due process requires cross-examination in circumstances like these because it is'“the greatest legal engine ever invented' for uncovering the truth.
"Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives."
The ruling also said even pop culture reconginzes the need for cross-examination, referencing courtroom scenes in A Few Good Men and My Cousin Vinnie.
The case the appeals court was considering centers around a sexual encounter at a fraternity party. The male student was eventually thrown out of school.
He then sued UM, alleging his due process rights weren't followed. A lower court ruled against him, but he appealed.
His argument was that the university already gave students accused of every other type of misconduct the chance for a hearing and cross-examination.
In its ruling Friday, the court bought that argument.
"Providing Doe a hearing with the opportunity for cross-examination would have cost the university very little. As it turns out, the university already provides for a hearing with cross-examination in all misconduct cases other than those involving sexual assault. So the administration already has all the resources it needs to facilitate cross-examination and knows how to oversee the process."
The male student in the case also said U-M was slanted towards believing the female student. The court agreed with him.
"When viewing this evidence in the light most favorable to Doe, as we must, one plausible explanation is that the (University of Michigan) discredited all males, including Doe, and credited all females, including Roe, because of gender bias," it wrote.
Friday's ruling matches a 2017 ruling in a case against the University of Cincinnati.
"You could see this building," Johnson said.
The due process clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process, the court wrote in its September 2017 ruling. "Here, the University’s disciplinary committee necessarily made a credibility determination in finding John Doe responsible for sexually assaulting Jane Roe given the exclusively 'he said/she said' nature of the case. Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair."
The court went on to say that having the accuser being questioned by the accused would allow the person making the judgment to observe "demeanor," which would help the person judge the honesty with which someone was speaking.
"We acknowledge that witness questioning may be particularly relevant to disciplinary cases involving claims of alleged sexual assault or harassment," the court said. "Perpetrators often act in private, leaving the decision maker little choice but to weigh the alleged victim’s word against that of the accused."
The court ruled it was fine with letting the accused submit questions to the head of a panel to ask the accuser. It also said the accuser could appear remotely, via Skype or the like, if that made the accuser more comfortable.
Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj
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