LIKELY NARROW University Victory in First Circuit Due Process Case
In a frustrating oral argument this morning before the First Circuit, Judges Bruce Selya and William Kayatta suggested that a UMass undergraduate had forfeited his right to bring a due process claim because he hadn’t protested at the time that the university had denied him the right to cross-examination.
The case is a factually odd one. The allegation involved dating violence in a tumultuous relationship. The accuser’s parents filed the initial allegation against Haidak, and UMass gave him an interim suspension without any sort of hearing. The school also issued a no-contact order between Haidak and his girlfriend—which both of them proceeded to violate numerous times. A hearing was delayed for several months, during which time (in response to pressure from the Obama administration) UMass changed its procedures to eliminate cross-examination in Title IX cases. Haidak was left with a process by which he could suggest questions to be asked of his girlfriend—most of which the university “investigator” didn’t ask (unknown to Haidak). The school found him guilty of dating violence and violating the no-contact order, and expelled him.
On the key issue in the case, however, Souter was silent and both Selya and Kayatta made clear their sympathies lay with UMass. Even though Haidak had no chance to cross-examine his accuser, and even though UMass had delayed convening a hearing in his case until the procedures changed to deny him a chance for cross-examination, Selya and Kayatta strongly implied that he was out of luck, because this undergraduate student, forced by the university process to defend himself, hadn’t raised a procedural objection at the time….This, of course, is an argument for allowing accused students meaningful legal representation throughout the Title IX process. The full oral argument is here. The First Circuit tends not to be speedy with decisions, so it’s possible we’ll see nothing from this case until the end of the year or early 2020.
academicwonderland By KC Johnson
