Colleges and universities are under pressure to respond more effectively to allegations of campus sexual assault. Public pressure, however, is no excuse to set aside constitutional rights, and a federal appellate court has just ruled that public colleges and universities are required to let the accused cross-examine the witnesses against them.
The Sixth Amendment to the U.S. Constitution guarantees defendants the right to fully confront the evidence and witnesses in all criminal prosecutions. The Fourteenth Amendment extends this guarantee to state actors. In this case, the Sixth Circuit Court of Appeals found that the right to confrontation applies in disciplinary hearings held by public institutions of higher education.
The case involved a University of Michigan student, pseudonym John Doe, who was accused of perpetrating a sexual assault at a “Risky Business”-themed fraternity party. According to the Associated Press, a university investigator found insufficient evidence to prove the student had committed the offense.
After two closed sessions in which the defendant was denied representation and refused the opportunity to confront the evidence and witnesses, however, a campus appeals panel overturned the investigator’s findings and threatened the student with expulsion.
In 2016, John Doe left the school voluntarily in order to avoid expulsion. He had a 3.94 grade-point average and was just 13.5 credits shy of his bachelor’s degree.
A federal district court ruled against Doe, but a three-judge panel of the Sixth Circuit overturned that decision.
“If a public university has to choose between competing narratives to resolve a case, the 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,” wrote the panel.
The panel commented that providing students with the chance to cross-examine witnesses would have cost the university little. In fact, the university already allows cross-examination in all misconduct cases except those involving allegations of sexual assault.
The ruling applies throughout the Sixth Circuit, which includes Michigan, Ohio, Kentucky and Tennessee. Wisconsin is in the Seventh Circuit, but judges here are likely to consider the Sixth Circuit’s reasoning when deciding similar cases. The University of Michigan is reviewing the decision before deciding whether to appeal.
“Sexual-misconduct proceedings have to be a search for the truth,” said Doe’s attorney. “The University of Michigan, by hiding the ball from both sides, has really done a huge disservice to the entire issue of sexual misconduct on campus. The stakes are so high.”
The stakes are indeed high for all concerned in sexual assault cases, but the U.S. Constitution guarantees defendants certain rights to ensure fairness in criminal proceedings. Public institutions are constitutional actors who must respect our constitutional rights.