Sixth Circuit Provides Expansive Due Process Rights In Title IX Cases

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...