A Circuit Split on Cross-Examination Rights

august 17 , 2019

Last week, the First Circuit Court of Appeals rejected a 2018 ruling from the Sixth Circuit Court of Appeals concerning an accused’s right to cross examine the accuser in Title IX hearings.

The Sixth Circuit ruled in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) that due process requires that when credibility is at issue, a public university “must give the accused student or his agent an opportunity to cross examine the accuser and adverse witnesses in the presence of a neutral fact finder.”

In contrast, in Haidak v. UMass-Amherst (No 18-1248P Decided August 6, 2019) the First Circuit found sufficient due process in an “inquisitorial system” where the accused submitted questions to a panel, and the panel in turn was responsible for questioning the accuser. The court in Haidak looked to Gorman v. University of Rhode Island (837 F.2d 7, 14) for guidance, examining whether the procedure used by UMass gave Haidak “an opportunity to answer, explain, and defend.”

The Sixth Circuit includes the states of Kentucky, Michigan, Ohio, Tennessee; the First Circuit includes the states of Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. Public universities within those states should follow the respective rulings of their circuits, while those in other states now are faced with conflicting ideas of what constitutes due process for the accused in Title IX hearings. In addition, the Department of Education is expected to release finalized regulations in September 2019 that are likely to also address this issue, potentially in a way that conflicts with one or both of the above cases.