6th Circuit Affirms Injunction Against Suspension of Student Whose Accuser Did Not Attend Hearing

A male student at the University of Cincinnati sued the university after was suspended for one year after a hearing panel determined he was responsible for sexual misconduct of a female classmate. He sought a preliminary injunction that would allow him to continue as a student while the merits of his case is being litigated. A district court granted that injunction, and yesterday the Sixth Circuit Court of Appeals affirmed.

To prevail on a motion for preliminary injunction, the plaintiff must demonstrate a likelihood of eventual success on the merits. Here, the Sixth Circuit agreed that the student's due process claim was likely to succeed.The hearing panel found the student responsible for sexual misconduct on the basis of the Title IX investigator's report, which contained statements by the female complainant. The female complainant, however, did not attend the hearing, and as such, was not available for cross-examination by the respondent. The respondent disputed the complainant's version of the events in question -- his testimony was that their sexual relations were consensual, and her statement, presented in the report, was that it was not. Accordingly, the deciding factor boiled down to the panel's sense of the respective parties' credibility. And because she was not present, he was not able to subject her testimony to cross-examination, which theoretically could have exposed inconsistencies or other characteristics that could have been relevant on the issue of credibility.  Thus, the appellate court determined, the plaintiff is likely to succeed on his due process claim.

The court emphasized the narrowness of its holding. It is not saying that respondents automatically win when the complainant does not attend the hearing; only in situations where credibility proves to be the deciding factor does the complainant's absence undermine due process. In cases where other evidence tips the balance, like cases with physical or video evidence, or other material witnesses who attend the trial, the complainant's absence from the hearing would not matter. Nor would it matter in case where the respondent admitted responsibility for the charge.

Additionally, the court emphasized that it is not insisting that universities permit the kind of cross-examination that one would see at a judicial trial, where the attorneys aggressively and doggedly try to fluster, undermine, and even trick the witness into saying something inconsistent with their story.  At the University of Cincinnati, the respondent's cross examination of the complainant is mediated by the panel, which accepts the respondent's proposed questions and filters out ones that are redundant or off topic. It also permits either party to attend the hearing remotely via Skype instead of in person. The court did not suggest that these methods of mitigating the potential for cross-examination to traumatize the complainant are unconstitutional. But it does insist that some opportunity for cross-examination take place before the hearing panel, in cases that turn on credibility.

Decision: Doe v. University of Cincinnati, 2017 WL 4228791 (Sept. 25, 2017).