NRPLUS MEMBER ARTICLE O n late Friday afternoon, the U.S. Court of Appeals for the Third Circuit issued a pathbreaking opinion affirming the critical importance of due process in campus sexual-misconduct proceedings, even for students at private universities. In a unanimous decision, a three-judge panel held that if a private university promises students a fair process in sexual-misconduct cases, it must provide students with a live hearing and the opportunity for cross-examination.
Since a 2011 federal policy change on how universities should address sexual-assault allegations, more than 550 accused students have filed suit against their universities, alleging that they were denied a fair process in campus sexual-misconduct proceedings. For years, the federal government successfully pressured colleges to tilt their procedures in favor of accusers, arguing that doing otherwise would violate Title IX. Students are routinely suspended or expelled without so much as a hearing or the opportunity to see all the evidence against them.
Early last month, after a lengthy period of notice and public comment, the Department of Education issued new Title IX regulations. Secretary Betsy DeVos recognized that “we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process.” The new regulations’ most significant provision requires colleges to decide Title IX cases through a hearing, with cross-examination of witnesses by a lawyer or advocate for both the accusing and the accused student. Opposition to these regulations has been fierce: Presidential candidate Joe Biden has promised to restore the Obama-era policies if elected, and 104 House Democrats signed an open letter denouncing, as flying “in the face of common decency,” a system in which Title IX accusers could be cross-examined by criminal-defense lawyers.
With Friday’s ruling, the Third Circuit became the first U.S. Appeals Court to decide a Title IX case since the regulations were issued, and its ruling paralleled the reasoning offered by the Department of Education. In August 2018, two female students at the University of the Sciences in Philadelphia accused a male student (identified in the court papers only as John Doe) of having had sex with them without their consent, in separate incidents from many months before. Doe had casual sexual relationships with both of his accusers, fellow sorority sisters, and they conceded that all other interactions with him were consensual.
Like many schools, USciences responded to the previous federal pressure by using a “single investigator” system to adjudicate sexual-assault cases. A single person, usually hired by the campus Title IX office, interviews the parties and other witnesses, and then writes a report determining guilt. The accused student cannot present his case to a disciplinary panel or ask questions to test the credibility of his accuser or any other witnesses. In this case, a lawyer hired by USciences deemed the accusers more credible than the accused student. Doe went to court, but a U.S. district judge sided with the university, setting up this appeal.
In oral argument before a three-judge panel, the university’s lawyer cited the efficiency of the single-investigator model. USciences also received support from 19 law professors, whose amicus brief championed a “public health–based approach” that would prevent accused students from defending themselves at a hearing.
The court strongly disagreed. Judge David Porter, writing for the court, found “that USciences’s contractual promises of ‘fair’ and ‘equitable’ treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses — including his or her accusers.” With this holding, the Third Circuit joined California and the four Midwestern states of the Sixth Circuit in recognizing the centrality of cross-examination to fairly deciding he-said/she-said, credibility-based cases. The First Circuit, based in New England, also has held that “due process in the university disciplinary setting requires some opportunity for real-time cross-examination, even if only through a hearing panel.”
As USciences did here, universities often urge the judge not to second-guess their guilty findings, claiming that they’re acting in an “educational” capacity. Judge Porter acknowledged the wisdom of this approach in evaluating academic disciplinary matters such as student plagiarism or faculty promotion. But, he pointedly noted, “this is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.” The opinion recognized that, in the end, basic procedural protections provide the surest path to fairness given the life-altering consequences of a wrongful finding of guilt.
That courts should give more deference to university discipline on cheating allegations than when schools adjudicate quasi-criminal allegations might seem like common sense. So, too, the idea that before deciding that one of its students is a sex criminal, the university should allow the student a chance for meaningful self-defense. In this respect, courts and federal regulators are stepping up where colleges and universities have fallen short.
The Third Circuit’s decision, written by a panel including Trump nominees as well as Obama nominees, was unanimous. This unanimity provides a reminder that campus due process need not — and should not — be a partisan issue. Universities, accused students, and accusers alike have a common interest in fairly evaluating such serious allegations — something that the procedures laid down in both the Third Circuit opinion and the new Title IX regulations will provide them.
KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. Samantha Harris, a campus disciplinary attorney with a law firm, is a senior fellow at the Foundation for Individual Rights in Education (FIRE). They are co-authors of “Campus Courts in Court,” NYU Journal of Legislation and Public Policy (2019).
Editor’s Note: The headline of this article has been emended.
Something to Consider
If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?
If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.