HUGE WIN For Doe! 3rd Circuit Issues Pathbreaking Opinion Against USciences. New Title IX Regs in Sex Cases Upheld
On late Friday afternoon, the U.S. Court of Appeals for the Third Circuit issued a pathbreaking opinion affirming the critical importance of due process in campus sexual-misconduct proceedings, even for students at private universities. In a unanimous decision, a three-judge panel held that if a private university promises students a fair process in sexual-misconduct cases, it must provide students with a live hearing and the opportunity for cross-examination. With Friday’s ruling, the Third Circuit became the first U.S. Appeals Court to decide a Title IX case since the regulations were issued, and its ruling paralleled the reasoning offered by the Department of Education.
With this holding, the Third Circuit joined California and the four Midwestern states of the Sixth Circuit in recognizing the centrality of cross-examination to fairly deciding he-said/she-said, credibility-based cases. The First Circuit, based in New England, also has held that “due process in the university disciplinary setting requires some opportunity for real-time cross-examination, even if only through a hearing panel.”
In oral argument before a three-judge panel, the university’s lawyer cited the efficiency of the single-investigator model. The court strongly disagreed. Judge David Porter, writing for the court, found “that USciences’s contractual promises of ‘fair’ and ‘equitable’ treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses — including his or her accusers.”
As USciences did here, universities often urge the judge not to second-guess their guilty findings, claiming that they’re acting in an “educational” capacity. Judge Porter acknowledged the wisdom of this approach in evaluating academic disciplinary matters such as student plagiarism or faculty promotion. But, he pointedly noted, “this is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.” The opinion recognized that, in the end, basic procedural protections provide the surest path to fairness given the life-altering consequences of a wrongful finding of guilt.
nationalreview.com-KC Johnson, Samantha Harris
