Some students who have been accused of sexual misconduct on campus find that there are conflicting messages as to whether they have a right to cross-examine their accuser or not. That confusion is understandable in Title IX cases because the issue is still extremely unsettled.
National Title IX advisor and defense attorney Joseph D. Lento explains.
Title IX Regulations are Silent on the Right to Cross-Examine an Accuser
Because the Title IX statute is short, vague, and completely devoid of the details, it is the regulations promulgated by the Department of Education that lay the groundwork for how misconduct claims are investigated and heard.
Even those regulations, though, do not currently say anything about when or whether an accused student has a right to cross-examine their accuser. The amendments to those regulations want to change that, but they have not been finalized, yet.
Courts Have Split Over Whether Cross-Examination is Required for Due Process
Courts that have heard lawsuits over whether accused students have a right to cross-examine their accusers have had to square the Title IX regulations with the U.S. Constitution's guarantee of due process whenever someone could be deprived of their life, liberty, or property.
Only a few of these cases have made it to the appellate level, though.
The first was Doe v. Baum, which was decided in September 2018. In that case, the 6th Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky, and Tennessee, said that accused students had a right to cross-examine their accusers when they were accused of sexual misconduct. That right, however, only applied “when the case hinged on a question of credibility.”
That case was followed by Haidak v. University of Massachusetts-Amherst, which was decided by the 1st Circuit Court of Appeals in August 2019. The 1st Circuit controls the states of Maine, New Hampshire, Massachusetts, and Rhode Island. In Haidak, the court decided that accused students didn't always have a right to cross-examine their accusers, carving out an exception for when the school's fact-finder or hearing panel meaningfully questioned each side.
The 7th Circuit, which covers Wisconsin, Illinois, and Indiana, seemed to follow Haidak in the case Doe v. Columbia College Chicago by suggesting that due process was satisfied when an accused student could provide the hearing board with a line of questioning for the accuser.
No Resolution, Yet
Unfortunately, this means there is a circuit court split over whether accused students have a right to cross-examine their accuser. In Michigan, Ohio, Kentucky, and Tennessee, they do. In Maine, New Hampshire, Massachusetts, Rhode Island, Wisconsin, Illinois, and Indiana, they do not. In the remaining 39 states, it's unclear.
Until the Supreme Court of the United States takes a case on the issue, or until the Department of Education publishes a regulation that breaks its silence on cross-examination, the question remains unsettled.
Joseph D. Lento: Title IX Defense for Accused Students
Joseph D. Lento is a Title IX defense lawyer. Contact him online or call his law office at (888) 535-3686 if you have been accused of sexual misconduct on campus.