College Students Have the Right to Confront Their Accuser!

By Brian C. Caffrey. Esq.

On college campuses across America, when a male student is accused of improprieties against a female student, he is typically afforded few rights. Students' academic careers can be derailed, and employment prospects damaged because of such an allegation. However, a federal appeals court has taken action to redress the imbalance in such cases. In an important decision this month from the Sixth Circuit Federal Court of Appeals, which covers Michigan, Ohio, Kentucky and Tennessee, the court held that a male college student accused of having sex with a female student who was too drunk to consent must have an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.

In Doe v. Baum, after a three-month investigation, a University of Michigan investigator recommended that the school rule in the male student's favor and close the case. The female student appealed to the university's Appeals Board. The Board reviewed the investigator’s report. And, after two closed sessions in which it neither considered new evidence nor interviewed any students, it reversed the investigator finding the female student's witnesses more credible than those called by the male student. Facing possible expulsion, the male student withdrew from the university, 13 ½ credits shy of graduating.

The now former student sued the university claiming the university’s disciplinary proceedings violated the Due Process Clause and Title IX. In his lawsuit, the male student, Mr. “Doe,” claimed the university denied him due process by not allowing him to cross-examine the opposing witnesses, and that the university discriminated against him because of his gender. The district court granted the university's motion to dismiss, and Doe appealed.

The appeals court reiterated a holding it had made in a previous case, holding that when a student is accused of misconduct, the hearing must include an opportunity for cross-examination, which the court called “the greatest legal engine ever invented for uncovering the truth.” Out of consideration for the accuser, however, the court did say that the accused himself doesn't have the right to question his accuser himself (saying that an agent --does this mean an attorney? --could do so), and suggested that the cross-examination needn't be in person, but could be by Skype or other technological means.

The appeals court reversed and sent the case back to the district court so that Mr. Doe may continue his lawsuit against the university for violating the Due Process Clause and Title IX. The university is now in legal jeopardy for administering a disciplinary system that denies the accused the right to cross examine adverse witnesses.

If you or a son of yours finds himself on the receiving end of a misconduct allegation by a college or university, make sure to assert the right to confront and cross-examination all adverse witnesses. And, make sure you are well represented by a skilled attorney. Call our office, 717 657 7770, to ask about a free initial consultation with one of our Education Law attorneys.