The U.S. Court of Appeals for the Sixth Circuit recently held that the University of Michigan violated a male student’s right to procedural due process when it did not allow him to cross-examine his female accuser in a university sexual-misconduct hearing.
The court held that when the outcome of a sexual-misconduct case hinges on the credibility of competing narratives, and suspension or expulsion is a likely sanction, public universities must allow the accused student or his representative to engage in live cross-examination of the accuser and adverse witnesses before a neutral fact finder.
In Doe v. Baum, John Doe, who withdrew from the university pending imminent dismissal for sexual misconduct violations, sued the school for violating his constitutional right to procedural due process and for violating Title IX, which prohibits sex discrimination in the education programs and activities of institutions that receive federal financial aid. A female student, Jane Roe, had reported to the university that Doe had sex with her in his bedroom without her consent and when she was incapacitated. Conversely, Doe contended that Roe consented to sex and was not incapacitated. There were no witnesses to the alleged assault, and witnesses offered starkly different testimony regarding how intoxicated Roe appeared to be at a party taking place downstairs immediately before the alleged assault. Despite an investigator’s initial finding that the evidence did not support the existence of a sexual assault, a university appeals panel found Roe and her supporting witnesses to be more credible and determined that Doe committed sexual assault.
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