University policies on responding to sexual assault claims have been hotly debated around the country.  The Sixth Circuit recently weighed in on the constitutional dimension of this issue.  Last month, in John Doe v. University of Cincinnati, et al., the Sixth Circuit found a strong likelihood that an accused student’s constitutional due process rights were violated when he was not able to confront his accuser during university misconduct proceedings.  On appeal, the University and individual members of the University’s Administrative Review Committee (ARC) argued that the district court erred in issuing a preliminary injunction to enjoin it from suspending the plaintiff-accused John Doe.  The Sixth Circuit found that the plaintiff had met his burden in proving that his due process rights were likely violated and upheld the preliminary injunction.

John Doe was cited for violating the University’s policies against sex offenses, harassment, and discrimination after a complaint was filed against him for sexual assault. When the University received such a complaint, its policy was to hold a hearing with an ARC panel to hear the allegations, review the evidence, and question participating witnesses.  While witnesses including the person who filed the complaint could appear, ARC policies did not require the complainant to be present.  In this case, the ARC panel heard a summary of both side’s accounts of the night in question and summaries of statements of witnesses who were told of the assault by the complainant.  The complainant did not appear.  She submitted a closing statement which was not notarized.  After hearing the evidence, the panel recommended that the University suspend John Doe, which it did.

Seeking to enjoin his suspension in the district court, John Doe argued that the proceedings violated his Sixth Amendment right to confront witnesses against him.  Although it recognized that a University has no duty to “transform its classrooms into courtrooms,” the Sixth Circuit found that the proceedings likely did not comport with due process. The court determined that accused students have a due process right to cross-examine adverse witnesses when case poses a “credibility contest” without other corroborating evidence.  Concluding those circumstances were present here, the court deemed it “disturbing” that the complaint was resolved without seeing or hearing from the accuser. Although it did not require a direct confrontation of the accuser by the accused, the court did require least some “circumscribed” form of cross-examination to evaluate an alleged victim’s credibility.

The Court urged that its holding was to be narrowly applied. Going forward, the court’s articulated standard of due process likely applies where the accused student is facing a serious allegation and punishment, where the accused student has had no opportunity to cross-examine the accuser, and where the finding of responsibility exclusively relied on a credibility determination.  Left unresolved is how much and what kind of corroborating evidence is needed to alleviate the cross-examination requirement, given that many such cases turn largely on conflicting accounts by the parties.  It also remains to be seen whether the court continues to permit “circumscribed” cross-examination:  the panel in this case noted that the standard derives from an unpublished decision that John Doe did not challenge.