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Today, the U.S. Court of Appeals for the Sixth Circuit issued the strongest judicial to date in support of the right to cross-examination in campus judicial proceedings that turn on credibility. The decision is also remarkable for its support for allowing students the active participation of an advisor, which would provide effective cross-examination while avoiding the potential problems with having the parties personally cross-examine one another in sexual misconduct proceedings.

In today’s ruling in , the Sixth Circuit reversed a lower court’s dismissal of an accused student’s due process lawsuit, holding:

[I]f 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.

Baum involved two University of Michigan students (known in the legal proceedings as Jane Roe and John Doe) who had sex after meeting at a fraternity party where both had been drinking. After Jane filed a sexual misconduct complaint, alleging she had been incapacitated and thus unable to consent, two different accounts of the two students’ night together emerged.

John claimed that Jane did not seem drunk to him and that she had been an active participant in the sexual encounter, performing oral sex on him and being on top during intercourse. The first sign of a problem, according to John’s account, was when they were cuddling after sex and Jane became sick and vomited.

Jane, by contrast, reported that she was drunk and unaware of her surroundings throughout the sexual encounter. She alleges that John undressed and had sex with her without her consent, and that she awoke to find John having oral sex with her.

The university interviewed a number of witnesses during its investigation, but the witness statements were contradictory; John’s friends largely supported his account, and Jane’s friends largely supported hers. Because of this conflicting witness testimony, the university’s investigator recommended finding John not responsible. Jane appealed from this finding, however, and the university’s appeals board — without holding any kind of hearing — reversed.

John Doe then brought a federal lawsuit against the university, arguing that the university’s failure to allow him to cross-examine Jane or the other witnesses against him was a violation of his right to due process. The district court granted the university’s motion to dismiss, and John appealed to the Sixth Circuit, which reversed the lower court’s decision in its opinion today.

The court, building on its September 2017 decision in , held 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.”

In its ruling, the court dispatched with the university’s argument that allowing John to respond to and point out inconsistencies in Jane’s written statement satisfied the cross-examination requirement, holding:

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. Nor can the fact-finder observe the witness’s demeanor under that questioning.  For that reason, written statements cannot substitute for cross-examination.

What really makes this decision unique, beyond its particularly strong language on cross-examination, is its implicit endorsement of the importance of allowing students the active participation of an advisor — a right that very few schools currently provide.

In discussing the importance of cross-examination, the court acknowledged the potential problems with allowing a student accused of sexual assault to directly cross-examine his accuser. Noting that institutions “have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment,” the Sixth Circuit panel declined to hold “that the accused student always has a right to personally confront his accuser and other witnesses.” (Emphasis in original.) Instead, the court pointed out the obvious solution to this problem:

[T]he university could allow the accused student’s agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker.

The court also allowed John Doe’s Title IX sex discrimination claim against the university to proceed, noting not only that the university was under tremendous pressure due to a Title IX investigation by the Office for Civil Rights, but also that the appeals board exclusively credited the testimony of Jane Roe’s female witnesses while rejecting all the testimony of John Doe’s male witnesses:

In doing so, the Board explained that Doe’s witnesses lacked credibility because “many of them were fraternity brothers of [Doe].” But the Board did not similarly note that several of Roe’s witnesses were her sorority sisters, nor did it note that they were female.

Taken together, the court held, “this specific allegation of adjudicator bias, combined with the external pressure facing the university, makes Doe’s [sex discrimination] claim plausible.”

Today’s opinion is worth reading in full. Of course, FIREwill track the case’s progress and impact moving forward, both inside the courtroom and on campus.