First Circuit Splits From Sixth Circuit And Education Department On Title IX

Author:Mr Philip J. Catanzano and Jeffrey J. Nolan
Profession:Holland & Knight

Philip Catanzano and Jeffrey Nolan are Senior Counsel in our Boston office.


The U.S. Court of Appeals for the First Circuit determined that constitutional due process principles do not require public universities to permit respondents or their advisors to cross-examine complainants in Title IX matters. The First Circuit's decision in Haidak v. University of Massachusetts-Amherst creates a federal circuit court split, and outlines cross-examination standards that are different from those outlined in the U.S. Department of Education's draft Title IX regulations. The U.S. Court of Appeals for the First Circuit issued on Aug. 6, 2019, an important opinion on campus sexual misconduct adjudications. In Haidak v. University of Massachusetts-Amherst, the First Circuit decided that constitutional due process principles were satisfied by having a neutral party interview the complainant and respondent in a Title IX student disciplinary matter. The decision is important because many higher education institutions utilize this mode of fact-finding and because the decision conflicts with an earlier Sixth Circuit opinion that required live cross-examination of the complainant by the respondent or their advisor. The Haidak opinion also puts the First Circuit on a collision course with the U.S. Department of Education's proposed Title IX regulations, insofar as those proposed regulations purport to require cross-examination on the terms outlined by the Sixth Circuit.

Background and First Circuit Decision

In Haidak, the complainant student reported to the University of Massachusetts-Amherst (University) that her boyfriend at the time, fellow student Haidak, had assaulted her while the two were studying abroad. The University issued a no-contact order as a safety measure. Both parties ignored the order, but the University suspended Haidak on an interim basis for approximately five months. The University held a hearing in 2013 and found Haidak not responsible for sexual harassment but responsible for the initial assault while studying abroad and for subsequently violating the no-contact order. Haidak, who had been found responsible previously for assaulting another student, was expelled.

Haidak argued his due process and Title IX rights were violated because the hearing process was biased and did not provide him an appropriate opportunity to challenge the testimony against him. The trial court dismissed his claims entirely; the First Circuit...

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