In recent years, campus due process claims have fared poorly before courts in the 6^th Circuit. Judge Susan Dlott dismissed a complaint against Miami despite what she deemed the “troubling” allegation that the university’s chief investigator discouraged an exculpatory witness from testifying. Judge Christopher Boyko dismissed a complaint against Case Western Reserve University despite finding a “plausible claim that Plaintiff was innocent of the charges levied against him.” And the University of Cincinnati has seemed desperate to claim the nation’s most unfair campus sexual assault process, currently boasting that students accused of sexual assault will not receive “a space whether [sic: where?] the standard of proof is ‘innocent until proven guilty.’”

Today, Cincinnati was back before the Sixth Circuit Court of Appeals, defending a process even more unfair than the two previous cases that went before the appeals court last year. (In one of those, the university had refused to look at potentially exculpatory video evidence; in the other, it allowed an accuser to testify and then flee the room before cross-examination, contending that cross-examination from a previous hearing, whose result had been invalidated for other procedural improprieties, was enough.) In today’s case, two students met on the Tinder app. The female student subsequently claimed the sex wasn’t consensual; the male student said it was. At the hearing, neither the accuser nor the Title IX investigator, who prepared a report that was provided to the hearing panel but who had ceased working for UC by the time of the hearing, bothered to appear, thus denying even the indirect cross-examination (submitting questions that the panel might or might not ask) university procedures permit. The accused student gave a statement to the panel affirming his innocence, after which panel members asked him questions. Because the accuser didn’t appear, the panel had no opportunity to ask her any questions.

The absence of the complaining witness and the UC-designated investigator produced this near-farcical exchange at the hearing:

Panel Chair: OK, so the complainant is not here. At this time I would have given them [sic] time to ask questions of the Title IX report. But again, they [sic] are not here. So we’ll move on.

So now, do you, as the respondent, … have any questions of the Title IX report?

Accused Student: Well, since she’s not here, I can’t really ask anything of the report.

Is this the time when I would enter in like a situation where like she said this and this never could have happened? Because that’s just—

Panel Chair: You’ll have time here in just a little bit to direct those questions. Just—

Accused Student: Then no, I don’t have any questions for the report.

(The panel chair didn’t explain how the “report” could have answered any questions the accused student presented.)

The panel found the accused student guilty—although, oddly, it only suspended him, a sentence that suggested even UC wasn’t confident in the finding.

The student sued. Judge Michael Barrett ruled that “in this case, the [UC] Hearing Committee was given the choice of believing either [the accuser] or Plaintiff, and therefore, cross-examination was essential to due process.”

In its appeal to the 6^th Circuit, which you can read here (along with the accused student’s reply), UC maintained that its denial of any cross-examination didn’t violate the student’s due process rights. The university relied on three 6^th Circuit decisions involving high school students, and explained away as “dictum” a passage in the otherwise due process-unfriendly Flaim decision (which applied to college and university students) stating that (quoting Winnick v. Manning) if a “case had resolved itself into a problem of credibility, cross-examination of witnesses might have been essential to a fair hearing.”

The university further maintained—again citing to the high school decisions—that allowing cross-examination would impose an inappropriate burden on UC. “If cross-examination were permitted,” the university’s lawyers mused, “where would the limitations lie?” Yet UC’s current procedures allow (indirect) cross-examination in all campus sexual assault cases, provided the accuser bothers to appear. UC has seemed to have no problem with “limitations” in constructing its own procedures allowing (indirect) cross-examination.

The case went before an interesting panel—Amul Thapar, Donald Trump’s first Appeals Court nominee, in his first day hearing arguments before the 6^th Circuit; Richard Griffin, a Bush II nominee; and Eric Clay, a Clinton nominee.

As occurred last week in the BC case, the hearing went poorly for the university. Both Griffin and (especially) Thapar asked tough questions of the university’s attorney, Evan Priestle; Clay spoke the least in the hearing, though his comments were very interesting.

Judge Griffin began by homing in on a point that Judge Barrett hadn’t emphasized—that the accuser’s non-attendance seemed to violate UC’s own rules.

 

Judge Thapar later added that UC’s inability to follow its own rules seemed to maximize the importance of cross-examination.

 

Both Griffin and Thapar (Griffin’s in this clip) repeatedly pressed UC on its extreme argument—that no cross-examination of any type is necessary—noting that that due process depended on the facts of the case:

 

Here, Griffin noted the particular importance of cross-examination for campus sexual assault cases:

 

Several times, Thapar expressed skepticism about UC’s efforts to rely on cases involving K-12 discipline to justify its policies:

 

In the rebuttal portion of the hearing (which extended several minutes past the deadline), UC’s attorney made increasingly aggressive arguments, surprising Thapar with this claim that the value of cross-examination, at least in university hearings about sexual assault, is “minimal.”

 

The attempt to make this argument with Griffin fared no better.

 

And Griffin closed the proceedings by noting that a process in which the panel simply trusted a report when the accuser didn’t bother to show up seemed inherently suspect.

 

In some ways, the most interesting portions of the hearing came with the three interjections from Judge Clay, a liberal but someone with a particular background with student discipline. In 1969, as an activist in the Yale Law School Black Students Union, Clay faced charges for allegedly threatening a visiting professor, George Lefcoe. Before the disciplinary tribunal, Clay argued that, placed in the appropriate cultural context, the statement didn’t constitute a threat. As Laura Kalman details in her book on YLS in the 1960s, Clay’s advocate (a 3L at the school) “cross-examined Lefcoe at length about his prior experiences with African Americans in an apparent attempt to demonstrate that Lefcoe had little and had not comprehended Clay’s words.” (Lefcoe later supported Clay’s judicial nomination.)

Perhaps because he was someone who personally recognized the value of cross-examination in the student disciplinary process, Clay offered the first interjection of the hearing—noting that what Cincinnati even purported to offer was not, in fact, cross-examination at all.

 

In this perceptive question of the accused student’s attorney, Joshua Engel, Clay wondered whether universities were prioritizing Title IX over the pursuit of truth.

 

Finally, after Thapar all but invited a challenge to how UC’s system of indirect examination might be unfair, Clay commented on how the hearing, at the least, would have been more fair if the accuser had shown up. Both questions teed up Engel to make an important point about why due process matters.

As occurred in the BC hearing last week, Engel faced no skeptical questions; indeed, the judges seemed to want to explore broader issues than relevant for this specific case. As with BC, oral argument isn’t necessarily predictive, but a decision in favor of UC from this panel would be a big surprise.