In a recent ruling, the U.S. Court of Appeals for the Sixth Circuit held that in conducting Title IX investigations, colleges and universities are required to provide parties an opportunity to cross-examine witnesses in the presence of a neutral fact-finder in cases hinging on the credibility of such witnesses. Doe v. Baum, et al., Case No. 17-2213 (6th Cir. Sept. 7, 2018). By affirming that these rights apply in Title IX cases, the Doe decision calls into question the single-investigator model used by many educational institutions and suggests that institutions subject to Title IX in the Sixth Circuit may need to reconsider their Title IX policies and procedures in light of this ruling.

The Doe case arises from an investigation conducted by the University of Michigan involving allegations that the plaintiff committed sexual assault at a fraternity party by having sex with a female student, who reported that she was too drunk to consent. During the course of the investigation, the University interviewed 25 witnesses, including the claimant and respondent/plaintiff. Because the statements from various witnesses were conflicting, the investigator’s report did not support a finding of misconduct.

The claimant appealed the determination, and the University’s appeals board reversed the finding, concluding that the claimant and her witnesses were more credible and persuasive.  While the University deliberated the sanctions, the plaintiff withdrew from the University and filed a lawsuit alleging the University violated his constitutional due process rights by failing to provide him with a hearing and an ability to cross-examine witnesses. The plaintiff also alleged violations of Title IX under three theories:  erroneous outcome, archaic assumptions, and deliberate indifference.

In analyzing the University’s investigatory process for purposes of the due process claim, the court found that offering students an opportunity to respond with written statements is not a sufficient replacement for a live hearing and ability to cross-examine witnesses, which “takes aim at credibility like no other procedural device…to test [a witness’s] memory, intelligence, or potential ulterior motives.” The court further stated that only under limited circumstances would it be appropriate to deny these procedures: when the determination does not rely on any testimonial evidence whatsoever, or if the respondent explicitly admits to engaging in the misconduct. In summary, the court concluded that “if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”

The court applied the same reasoning to the plaintiff’s Title IX erroneous outcome claim, holding that “because Doe alleged that the university did not provide an opportunity for cross-examination even though credibility was at stake in his case, he has pled facts sufficient to cast some articulable doubt on the accuracy of the disciplinary proceeding’s outcome.” The court affirmed the dismissal of the remaining Title IX claims.

As noted in the dissenting opinion, the Doe decision presents a host of unanswered questions. While the decision recognizes that a university is not necessarily required to permit a responding party to cross-examine the claimant directly due to concerns of the resulting emotional trauma to the claimant, it leaves open who would conduct such an examination and how the examination would be conducted, especially considering case law in the Sixth Circuit has made clear that students have limited right to counsel in school disciplinary proceedings. Moreover, the decision fails to define the scope of the hearing or other adversarial process that is required, as prior case law has concluded that full-scale adversarial hearings for school disciplinary proceedings are not required to satisfy due process.

Since most Title IX determinations rely, at least in part, on assessing witness credibility, the Doe decision questions the continued use of a single-investigator model in the Sixth Circuit. Following Doe, educational institutions in Kentucky, Michigan, Ohio and Tennessee that utilize a single-investigator model, without any hearings or other opportunity for witness cross-examination, are subject to heightened risk of adverse findings in due process and Title IX erroneous outcome claims. Given this development, such institutions should review their Title IX policies and disciplinary processes to provide students an opportunity for cross-examination of witnesses before a neutral fact-finder, while minimizing unnecessary trauma to claimants.

Furthermore, the Sixth Circuit’s ruling in Doe appears consistent with the Trump administration’s increased focus on due process protections for parties in Title IX proceedings. This focus was reflected in both the Department of Education’s rescission of Obama-era guidance in September 2017, as well as in draft regulations that have been the subject of recent news reports. As Secretary Devos stated in September of 2017, “Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.” Accordingly, colleges and universities should not consider the Doe decision an outlier, but rather as consistent with the national trend towards requiring additional due process in Title IX proceedings.

Finally, it should be noted that while the due process aspect of the Doe decision is limited to public universities, the parallel erroneous outcome holding would apply to both public and private institutions. Accordingly, all institutions subject to Title IX in the Sixth Circuit should thoroughly consider the implications of the Doe decision on their policies and procedures.