Campus Sex Cases, Cross-Examination, and the University of Michigan

For years, under Title IX, a student charged with sexual assault was not permitted to face their accusers and cross-examine them. The rationale by feminists was that confronting the accuser was equivalent to another sexual assault. This policy violated due process, even though some innocent students’ reputations and careers have been ruined.

The Chronicle of Higher Education recently published an article noting that despite the furor over new proposed Title IX regulations, which allows students to cross-examine their accusers, a previously-adjudicated case — Doe v. Baum — already establishes that requirement at public universities. The article, by Bennett Leckrone, then looked at the policies of four schools and discovered that only two (University of Michigan and Michigan State University) are complying with the Sixth Circuit’s Baum ruling, one is not in compliance (University of Kentucky), and one is unclear (University of Tennessee).

Leckrone’s article prompted me to look at the current Title IX policies of all 40 four-year public universities in the Sixth Circuit. The results are mixed. Many public universities in the circuit have implemented Baum—either without problems (suggesting the criticism of the regulations for requiring cross-examination is misguided) or with problems they easily could have avoided.

At the same time, however, almost 25 percent of the public universities in the circuit do not comply with Baum. Five other schools place significant restrictions on the rights granted in Baum. And six more (Wright State, Western Kentucky, Ohio State, Central State (Ohio), the University of Tennessee, and the University of Louisville) have policies that reference a hearing but leave unclear whether, or how, cross-examination occurs.

[The 85 Universities that Discriminate on the Basis of Sex]

Implementing Baum

Twenty public universities in Ohio, Michigan, Tennessee, and Kentucky comply with Baum. This list includes Kent State, Wayne State, Grand Valley State, Miami (Ohio), Toledo, Michigan Tech, Akron, Eastern Tennessee State, Tennessee Tech, Michigan State, and Northern Kentucky. Each of these universities allows cross-examination, including of other witnesses. For reasons they don’t explain, only the accused student, and not his lawyer, can conduct the cross-examination.

Five schools comply with Baum but do so grudgingly. Western Michigan, Ferris State, Eastern Michigan, Kentucky State, and the University of Michigan all maintain the single investigator still produce a report, with the hearing (where only the student can conduct a cross-examination) grafted on top of the report. This approach in practice preserves much of the single investigator’s influence, with the hearing more as a de facto appeal. Ferris State, for instance, makes clear that its “conduct conference is not intended to be a repeat of the investigation.”

Of these five, the Eastern Michigan policy stands out: after the investigator’s report is produced, the EMU “hearing is for the purpose of cross-examination of witnesses only. Cross-examination is defined as “the questioning of a Party or witness by a Party or its advisor in order to ascertain the credibility of the witness’s statements in the Preliminary Report.” A Party and its Advisor are prohibited from conducting direct examination of witnesses (i.e., questions to a witness by the Party who the witness’s testimony would tend to support).” This policy complies with the letter of Baum (which mentions cross-examination in the context of adverse witnesses) but ignores the reality that direct questioning can be critical for developing information that can be used to impeach adverse witnesses.

Michigan’s policy has encountered fierce on-campus criticism because the university requires the accused student—and not his lawyer—to conduct all cross-examination. Activists have not unreasonably criticized this approach, and the university’s response (allowing lawyers to do the cross-examination would violate equity principles, even as Michigan is home to one of the nation’s preeminent law schools whose faculty could be tapped for occasional pro bono work) is unconvincing.

[Survey Confirms Unfairness of Campus Title IX on Due Process]

Three schools allow cross-examination, but their approach (depending on the facts of the case) might violate Baum by requiring “cross-examination” by a party not affiliated with the accused student.

UT-Chattanooga provides a full right to cross-examine “adverse witnesses”—but the accuser has the right “not to be questioned directly by the other party during a disciplinary hearing or at any other time during UTC’s investigation or resolution,” which in effect would veto cross-examination. It’s not clear how questions are asked if she does so.

Oakland’s policy claims to provide full cross-examination—but then notes that “in some cases, questions will be submitted to the Chairperson of the hearing panel to ask the questions of the reporting party on the responding party’s behalf.” The policy offers no criteria for this approach, nor does it explain how having “questions . . . submitted to the Chairperson” complies with Baum’s mandate that questions come from “the accused student or his agent.”

At Middle Tennessee State, the University Counsel’s office informed me via e-mail that “the University allows for cross-examination in a manner consistent with Baum. For background, student conduct hearings may proceed as either an institutional hearing under the Student Conduct Rules or, in appropriate cases, a contested case hearing under the Uniform Administrative Procedures Act. Both of these processes allow for questioning of parties and witnesses during the hearing, including cross-examination.

[2019 in Review in Accused Student Litigation]

“In cases specifically involving sexual misconduct, University policy specifies that cross-examination is allowed but should be conducted in a manner that does not allow the accused or the accuser to question each directly other during the proceeding. This limitation on cross-examination was explicitly sanctioned by the Court in Baum: ‘the university must allow for some form of in-person questioning in front of the fact-finder…. That is not to say, however, that the accused student always has a right to personally confront his accuser and other witnesses…. Universities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that.’”

Baum does allow such a restriction (wisely, in my opinion)—but also made clear that if the university said the student couldn’t conduct cross-examination “under any scenario, then it must allow a representative to do so,” since “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.” Yet MTSU’s policy also holds that an accused student’s “legal counsel cannot engage in direct or cross-examination.” It’s not clear if this provision is waived in Title IX cases; or, if not, who would ask the questions in a way that would comply with Baum.

Amidst this reluctant embrace of Baum, one university stands out. Ohio University allows cross-examination with the maximum amount of choice, by either the accused student or his advisor. Ohio is the only university in the four states of the Sixth Circuit to implement Baum in a manner that ensures the accused student has the most meaningful opportunity to defend himself.

Limiting Cross-Examination

Five universities purport to allow cross-examination but place such significant restrictions on what can be asked or even whether a hearing will occur that they effectively nullify the right.

Before Baum, Central Michigan, Tennessee State, Lake Superior State, Cleveland State, and the University of Memphis all used the single-investigator model. Like the University of Michigan, their post-Baum policies retain the single-investigator structure, grafting a hearing (which TSU and Memphis call an appeals hearing) onto the process at the end. Unlike Michigan, each of the five places restrictions on the hearing and any cross-examination it supplies beyond deference to the single investigator’s findings.

[Cuomo and the Lack of Fairness in New York Title IX Stats]

At Memphis, the investigator’s report can be appealed to a “hearing officer.” Still, the hearing will occur only if the accused student can successfully “explain why he or she believes the factual information was incomplete, the analysis of the facts was incorrect, the appropriate standard was not applied, and how this would change the determination in the case.” A Memphis spokesperson did not return multiple e-mails asking how this policy complied with Baum.

Tennessee State has an appeals hearing, but its panel chair has an unspecified right to place “limitations on cross-examinations.” The university’s policy also uses “survivor” and “complainant” interchangeably. A TSU spokesperson did not return multiple e-mails asking how this policy complied with Baum’s mandates.

At Lake Superior State, “cross-examination is defined as the questioning of a Party or witness by a Party through their advisor in order to ascertain the credibility of the witness’s statements in the Revised Preliminary Investigative Report.” The questions must be submitted in advance to the hearing board, which can preemptively exclude them (an approach probably permissible under Baum). Critically, however, the policy also prevents the accused student or his advisor from cross-examining the investigator who produced the report, even if the investigator (as would surely be the case in a report that recommended a guilty finding) is an adverse witness. Lake Superior appears to be the only Sixth Circuit public university with such an exclusion.

Cleveland State, meanwhile, allows cross-examination, but only if the single investigator herself determines that the case comes down to credibility. If a hearing occurs, the accuser can request that any questioning come from the accused student’s lawyer and not from the student. At the same time, however, if the accuser refuses to participate in the hearing, the accused student can’t be sanctioned, a right unmentioned in most current Sixth Circuit policies.

[An Opponent of Due Process for the Supreme Court?]

Then there’s Central Michigan, which purports to allow a hearing with cross-examination after the investigator produces her report. But the university places two significant restrictions on the right. First, CMU allows a hearing only if the Title IX coordinator decides that the outcome from the investigator’s report was “solely dependent upon credibility” (emphasis added). If not, no hearing of any type occurs. The policy offers no guidance on the criteria for how the Title IX coordinator will make such a determination—which, incredibly, cannot be appealed.

Even if a hearing occurs, the CMU Title IX coordinator can limit the “scope of the hearing” to “the credibility issue(s).” As with the right to hold a hearing, this decision, too, is “not grounds for appeal.”

Defying Baum

Nine universities violate Baum by using procedures that have a hearing, but only with submitted questions to the panel chair (who can ask them or modify them at all) for some or all witnesses.

Four of these nine—Morehead State, Austin Peay, the University of Kentucky, and Bowling Green—allow the accused student to cross-examine all witnesses except for the accuser. Here’s Bowling Green’s description: “The Reporting Party, the Responding Party, and the members of the hearing panel may ask questions directly to each witness; except that any questions from the Reporting Party to the Responding Party or from the Responding Party to the Reporting Party will be directed to the Chair.” Austin Peay’s policy, meanwhile, affirms that “the hearing officer or chair of the hearing committee shall conduct the proceedings in a manner that does not allow the respondent to directly question the complainant in person,” and that the parties can request “limitations on cross-examinations” of other witnesses.

The four institutions’ policies do not explain how disallowing cross-examination of the most critical witness in a Title IX case complies with Baum’s mandate that “if a public university has to choose between competing narratives to resolve a case, the university must allow the accused student or his agent to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” (emphasis added) The Chronicle’s Leckrone reported that “a spokesman for the University of Kentucky declined to comment on the policy.”

At least this trio of schools allows some cross-examination. Five other Sixth Circuit public universities—Northern Michigan, the University of Cincinnati, Youngstown State, Eastern Kentucky, and (it appears from a less-than-clear statement of policy on the university website) Murray State—require all questions of witnesses to be submitted to the panel chair, who has discretion on whether to ask them and what wording to use. By specifying that questions must be asked by “the accused student or his agent,” Baum rejected the submitted-questions model.

[Is Yale More Dangerous than Detroit?]

(Eastern Kentucky is currently the subject of a due process lawsuit for denying an accused student access to even this limited hearing; the university allegedly has placed the student on a de facto permanent “interim” suspension, which under EKU procedures doesn’t require a hearing. The student lost his ROTC scholarship as a result of the decision.)

So, what’s the bottom line? Many universities in the Sixth Circuit have implemented Baum without apparent difficulty. The only significant pushback among schools compliant with Baum has come at the University of Michigan, and there, the resistance has focused on the university’s refusal to adopt a compromise (questioning by lawyers) that would be preferred by both sides.

Perhaps previewing Brett Sokolow’s prediction that universities should find “clever workarounds” of the sections of the proposed Title IX regulations that provide live hearings and cross-examination, several universities have developed restrictions on the right to cross-examine that might (or, in the cases of Central Michigan and Cleveland State, might not) comply with the letter of the law in Baum while undermining its spirit. And nine public universities have chosen not to comply with Baum.

Will they take a similar approach to the pending Title IX regulations?

The University of Michigan Defies the Law

“I am a huge believer in due process and allowing the accused to defend themselves,” University of Michigan President Mark Schlissel recently proclaimed. The remark, which generated no follow-up question from the campus newspaper journalist who conducted the interview, was breathtaking. Few, if any, current university presidents have assumed a position more hostile to due process than Schlissel, whose intransigence has prompted both a federal district court and the Sixth Circuit Court of Appeals to issue strong opinions upholding the rights of accused students at Michigan.

The latest ruling against Michigan came last month. In 2017, in Doe v. University of Cincinnati, the Sixth Circuit held that in Title IX cases, the accused student needed to have a hearing with some form of cross-examination. For reasons that remain unexplained, however, Michigan declined to follow the Cincinnati precedent and continued to handle sexual assault cases through a “single investigator” model, in which one person—hired by the Title IX office—serves as judge, jury, prosecutor, and the police. When confronted with this record in another Michigan case, Sixth Circuit Judge Julia Smith Gibbons said that she couldn’t “get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”

When Doe was charged, his lawyer, Deb Gordon, successfully obtained a preliminary injunction preventing the school from moving forward with its unconstitutional procedure. Michigan then could have settled the case. Instead, the university endlessly dragged out the process—refusing to enter a settlement admitting its 2018 policy was unconstitutional (as it obviously was).

In an April 2019 proceeding, Judge Arthur Tarnow recalled that the university’s lawyer, Amelia Bedelia-like, “repeatedly claimed that he did not understand the meaning of the term ‘cross-examination.’” Then, the university claimed that the case should be dismissed because it was premature since Michigan hadn’t yet found the accused student guilty. Judge Tarnow described this argument as “Let [the accused student] have his hearing, and if he gets screwed, then he has standing.”

The inevitable result: Tarnow’s ruling holding that both the 2018 and parts of the university’s interim 2019 policies were unconstitutional. Tarnow also made clear that the university’s pattern of unconstitutionality was longstanding: “From its inception to the University’s appeal in Baum, the 2018 Policy was in violation of Circuit precedent.” And, for good measure, Tarnow denied qualified immunity to various Michigan administrators, potentially making them personally liable for their treatment of Doe.

Michigan’s response to all of this? To appeal to the Sixth Circuit and drag the case out further. The university’s message to accused students: you might win, but it will cost you years of your life to do so.

The Michigan ruling wasn’t the only crucial Title IX case last month. The second involved a lawsuit filed by an accuser named Samantha Garrett against the University of South Florida. Garrett and the student she accused were USF graduate students. Contemporaneous text messages showed that the accuser and the accused had a flirty, amicable, but non-sexual relationship. One night both drank heavily and had sexual contact.

Garrett claimed that the incident began consensually but that she withdrew consent. The accused student expressed regret the next day, and the relationship seemed to resume; Garrett slept over twice at the accused’s apartment, and he even invited her to Thanksgiving with his family. Garrett then started behaving erratically, sending nine texts in an hour-long span to the accused student wanting more information about Thanksgiving. (The accused student was at a party at the time.) At the ninth text, Garrett implied she was going to overdose; the accused student rushed to her apartment and called police who involuntarily committed her.

This development seems to have enraged Garrett; she texted another student, saying, “after this, there’s no way I’m ok with him staying in the program.” She filed a Title IX complaint, and though the accused student denied her claims, he agreed to accept probation and a no-contact order. But Garrett wanted her former friend expelled and requested an appeal at USF for enhanced punishment. USF administrators accommodated her request—but told her that in an appeal, the accused student would have a right to a hearing. Garrett responded by filing a lawsuit, claiming that giving the accused student a meaningful chance to defend himself violated Title IX.

In a significant ruling, Judge Steven Merryday rejected this argument out of hand: “[O]ffering due process to an accused [student] is neither ‘clearly unreasonable’ nor ‘deliberately indifferent.’” He could find no authority “suggesting that Title IX imposes liability on a university because the university affords the accused the rudiments of due process, that is, notice and an opportunity for a hearing.” The court reaffirmed that even in the world of Title IX, the accused student has some rights—as long as the case occurred at a public university.

The Michigan case reveals the lengths to which universities will go to ensure that accused students don’t have fair procedures; the South Florida lawsuit shows the degree to which some victims’ advocates are seeking to define Title IX as precluding fair treatment for the accused.