LIVELY ORAL Argument in Third Circuit Clarion University Due Process Case
Today, the Third Circuit heard its first direct appeal of a campus due process lawsuit. This case involved an African-American student from Clarion University in Pennsylvania. Clarion becomes the sixth lawsuit from an accused student awaiting a decision before an Appeals Court.
The Clarion case presented a somewhat unusual fact pattern in the array of due process lawsuits: the accused student, Tafari Haynes, was arrested and faced criminal charges as Clarion moved with lightning speed to conduct a Title IX adjudication. The rush to act was puzzling because Haynes already was suspended, and thus posed no threat to campus safety; and the parties were awaiting a DNA test that seemed likely to shed light on the accuser’s claims. (The DNA tests would show no match to Haynes, raising the possiibility of actual innocence, and all charges were dropped after the accuser decided she did not want to proceed with the case.)
Clarion’s handling of the Title IX adjudication process raised a number of red flags. Significant allegations of bias existed against the investigator, Matthew Shaffer. Critically, however, Haynes acted on advice of counsel to avoid the possibility to self-incrimination, and did not participate in the hearing. That was enough for the district court to dismiss his due process claim. The student appealed.
The Third Circuit panel that heard Haynes’ appeal consisted of Thomas Ambro (Clinton), L. Felipe Restrepo (Obama), and Morton Greenberg (Reagan). Joshua Engel argued for Haynes. The Third Circuit panel pressed Engel on the consequences of Haynes’ non-attendance, albeit in an odd way. Based primarily on a single footnote in Clarion’s brief, the judges seemed open to believing that it was at least possible that Haynes’ criminal attorney could have shown up at the hearing, and then been allowed by Clarion officials to participate and ask questions of the accuser. (Clarion’s general rules don’t allow cross-examination, and prohibit a student’s lawyer from speaking in the hearing.) Clarion’s claim that cross-examination might have been allowed, however, produced a remarkable exchange between Judge Ambro and Hopkirk, where Clarion’s attorney eventually had to admit that the university had never informed Haynes or his attorney that the university might modify its procedures to allow the lawyer to conduct cross-examination. While anything is possible, I’m not aware of any Title IX case in which a university, at the last minute, has changed its procedures in such a fundamental way to grant more procedural protections to the accused.
academicwonderland By KC Johnson Full 53 Min Third Circuit Oral Arguments-Haynes v. Clarion University Of Pennsylvania
