Ruling could push how colleges handle sexual assault to U.S. Supreme Court |

Ruling could push how colleges handle sexual assault to U.S. Supreme Court

Associated Press
A federal court ruling could push to U.S. Supreme Court the issue of how colleges handle sexual assault.

DETROIT — A ruling this past week by the federal 1st Circuit Court of Appeals could be the key to landing the issue of how universities handle sexual assaults before the U.S. Supreme Court.

At the very least, the ruling pumps the brakes on the fast-moving train of judicial decisions favoring those accused of sexual assaults and claiming their due process rights have been violated by not being allowed to personally cross-examine their accusers.

“In theory, this opens the way for a … petition to the Supreme Court,” said K.C. Johnson, a professor at Brooklyn College and the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.” Johnson tracks cases and has provided the Detroit Free Press with a copy of a database he maintains on how decisions come out.

That’s because the ruling this past week contradicts a ruling by the 6th Circuit Court of Appeals in a case involving the University of Michigan, where judges said schools must offer live hearings with direct cross-examination.

People on both sides of whether hearings with cross-examination should be allowed in universities’ investigations have been waiting since that ruling for another circuit to issue a contradictory ruling to help spur a Supreme Court case. Having contradictory rulings often is key to getting the Supreme Court to weigh in, but is not a guarantee justices will pick up the case.

This past week’s ruling didn’t offer clarity on the issue, said Andrew Miltenberg, a high-profile attorney who has represented a number of students accused of sexual assault, including Keith Mumphery at Michigan State University that ended in a settlement in which the university wiped out a finding Mumphery, a former MSU and NFL football player, had sexually assaulted a female.

The ruling also could provide a legal blueprint for those who plan to sue to stop Education Secretary Betsy DeVos from implementing new rules for universities around sexual assault investigations that call for live hearings and cross-examination.

The ruling

The 1st Circuit ruling stems from a lawsuit filed by James Haidak, a former student at the University of Massachusetts at Amherst. Haidak’s girlfriend, Lauren Gibney, filed a complaint in 2013 that Haidak physically assaulted her on a trip to Barcelona, Spain, while they were studying abroad.

She alleged he put his hands around her throat, pushed her onto a bed and squeezed pressure points on her body during an argument. Haidak offered a different account. He said he restrained Gibney only because she struck him first and he was attempting to hold her back while she tried to kick him.

After Gibney filed the report, the university banned Haidak from contacting her. But both sides ignored that order and contacted each other hundreds of times.

University officials told Haidak twice more that he was violating the university’s code of conduct by potentially harassing Gibney and disregarding the initial no-contact order. Administrators then suspended Haidak in June 2013 without holding a disciplinary hearing. The punishment remained in place for five months.

The university held a hearing on the accusations against Haidak in November 2013, during which he was found responsible for the initial assault against Gibney in Barcelona and for violating the university’s no-contact orders. But the hearing panel found that he was not guilty of harassment. Haidak was expelled because he had already violated the conduct code twice before.

Haidak then sued, saying his due process rights had been violated because he didn’t have a chance to directly cross examine Gibney.

But that argument didn’t sway U.S. Circuit Court Judge William Joseph Kayatta Jr.

“In adjudicating Haidak’s case, the university employed a nonadversarial model of truth seeking. It was the university’s responsibility, rather than the parties’, to investigate the facts and develop the arguments for and against a finding of responsibility,” Kayatta wrote. “Such a system of adjudication can fairly be called inquisitorial.”

Kayatta went on to say that in university settings, students don’t have the right to have an attorney asking the questions.

“And when the questioner and witness are the accused and the accuser, schools may reasonably fear that student-conducted cross-examination will lead to displays of acrimony or worse,” Kayatta wrote. “This is not to say that a university can fairly adjudicate a serious disciplinary charge without any mechanism for confronting the complaining witness and probing his or her account. Rather, we are simply not convinced that the person doing the confronting must be the accused student or that student’s representative.”

The court ruled that in this case the panel did a good job in asking questions during the hearing. Kayatta did agree with the justices in the 6th Circuit case in saying that a hearing is good to have.

“But the court took the conclusion one step further than we care to go, announcing a categorical rule that the state school had to provide for cross-examination by the accused or his representative in all cases turning on credibility determinations,” he wrote, adding that could lead to a short slide to a full-blown trial, complete with attorneys.

That’s completely different from the 6th Circuit, which wrote:

“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence or potential ulterior motives.”

The fallout

When the 6th Circuit issued its ruling mandating live hearings and cross-examination, it was touted as a major step forward for those advocating for that they said was needed reform.

It was also seen a major part of a rising tide of accused students winning in the federal court system.

In 2011, the Obama administration issued what became known as the “Dear Colleague” letter demanding colleges up their game when it came to sexual assault complaints. More sexual assault survivors filed complaints with the federal government alleging their universities hadn’t handled their complaints properly. The federal government cracked down on schools, including pre-Larry Nassar scandal Michigan State, which the government said had bad policies that contributed to a sexually hostile environment.

Schools also switched to a single investigator method and trauma-informed processes. The single investigator model works by having a single university employee or outside expert interview the accuser, the accused and any witnesses separately and then write up a report. Both sides often have a chance to review the report, but can’t ask each other or witnesses questions.

But as the model of investigation changed, complaints started to rise that universities had swung the pendulum too far and were going into the process thinking the male students were guilty even before gathering the evidence.

Since the “Dear Colleague” letter, universities have lost 150 decisions in federal court cases, mostly motions to dismiss the lawsuit. They’ve won 131 times. They have ended cases with confidential settlements 72 times, which many count as a win for students.

Those numbers don’t include cases still working through the system. The estimate is one federal case is filed every two weeks. More still are in state court systems.

After the 6th Circuit decision, lawyers began citing it various cases, seeking live hearings with cross examinations. Universities in the states that make up each circuit must follow the rulings of its circuit, unless the Supreme Court has overturned that ruling.

Now those arguing against those hearings with direct cross-examination will be able to use the 1st Circuit case as an argument against that.

That’s a good thing, said Laura Dunn, a sexual assault survivor and attorney, who has sued universities on behalf of survivors and also trained universities on how to handle these investigations.

In its ruling, the 1st Circuit returned to the spirit of the 2011 Obama guidance, which reasoned direct examination would lead to inappropriate questions and hostile environment for survivors.

“Having sat in many hearings, that’s my experience,” Dunn told the Free Press. “A significant portion of the questions are out of bounds. I definitely think the 1st Circuit has a good perspective on how the hearings really go.”

She thinks the 6th Circuit decision was part of a “broader culture war” between people who believe women regularly lie about sex assaults and those who believe them.

That war is likely to continue.

“I have long believed that some sort of Title IX case will reach the Supreme Court,” Dunn said. “Is this it? I don’t know. Let’s see what some other circuits say.”

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