A split in two federal appeals courts opinions could set up a court challenge at the highest level and give clarity on due process in campus sexual violence cases. A federal appeals court found that a former University of Massachusetts at Amherst student accused of assaulting and harassing his girlfriend was deprived of due process rights when university administrators suspended him without first holding an official hearing. The ruling from the U.S. Court of Appeals for the First Circuit also represents a split from a significant opinion last year by the Sixth Circuit’s appeals court on the due process rights of students accused of sexual misconduct. It ruled in that decision that students or their representatives must be allowed to directly question their accusers in sexual violence cases… The First Circuit opinion agrees with the Sixth Circuit, to an extent, that cross-examination should be mandated in some form. But the discrepancies in the two courts’ opinions could create an opening for a challenge in the U.S. Supreme Court, though some legal analysts doubt that outcome. “In theory, this opens the way for a … petition to the Supreme Court,” said K.C. Johnson, a professor at Brooklyn College and the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”
Samantha Harris has a different perspective and writes…while some have framed the decision as creating a circuit split with the Sixth Circuit’s Baum decision, I don’t see it that way. The fact that the Sixth Circuit says questioning during cross-examination has to be by the party’s representative, while the First Circuit says the questioning can be through a neutral third party but must still be meaningful, strikes me as a difference of degree rather than a true split. The precedent around cross-examination in the campus disciplinary setting will develop further in the coming years as the hundreds of due process lawsuits brought by students accused of sexual misconduct continue to work their way through the courts.
thefire– S. Harris heraldmailmedia– D. Jesse
