As colleges and universities continue to grapple with how to handle Title IX disciplinary proceedings, yet another federal court has weighed in on the due process protections that should be afforded to college students accused of sexual assault.  In August, the First Circuit concluded in Haidak v. University of Massachusetts-Amherst that the University of Massachusetts violated a former student’s due process rights by suspending him for five months without proper notice and a fair hearing.  This victory, however, was of little consolation as the court further concluded that because the subsequent expulsion hearing afforded the student due process, the student’s ultimate expulsion from school should be upheld.

Haidak v. University of Massachusetts-Amherst involved a “tumultuous romantic relationship” between two students that resulted in an incident of alleged dating violence while they were studying abroad.  Despite the issuance of a no-contact order, the students continued to communicate and see each other upon their return to campus, resulting in additional allegations.  Ultimately, the accused student was suspended for five months pending a disciplinary hearing, after which time he was expelled. Haidak challenged the disciplinary findings, citing violations of his due process rights.

In its decision, the First Circuit agreed that the suspension was improper, as Haidak had not been afforded adequate due process protections, such as proper notice and a hearing. This was not the end of the inquiry though, as the First Circuit also squarely addressed the fairness of the subsequent expulsion proceeding. In its decision, the court noted that the expulsion hearing had included a number of procedural protections, such as providing the student with written procedures and appropriate notice of the charges and recognizing the student’s right to be present, call witnesses and consult with an attorney.  The court also considered the key question of whether the accused has a right to personally cross-examine his accuser, ultimately agreeing that the tenets of fairness and due process demand that some opportunity for reasonably adequate real-time cross-examination be provided to an accused student.  However, the First Circuit stopped short of saying that an accused student has an absolute right to first-hand cross-examination of the accuser, concluding that examination through a hearing panel, as was the case in Haidak, is sufficient.

The decision in Haidak is consistent with the First Circuit’s earlier decision in Gorman v. University of Rhode Island, which had concluded that the “right to unlimited cross-examination has not been deemed an essential requirement of due process in school disciplinary cases.”  837 F. 3d 7 (1st Cir. 1988). Since the right is not unlimited, the court in Haidak concluded that it is sufficient to permit questioning by a hearing panel, as the court was not convinced that the person doing the confronting must be the accused student or the student’s representative. The court explained that it stopped short of adopting such a rule because it had no reason to believe that questioning of a complaining witness by a neutral party would be so fundamentally flawed as to create an unacceptable risk of due process deprivation.

The First Circuit’s decision in Haidak is therefore at odds with the Sixth Circuit’s decision last year in Doe v. Baum, which ruled that the University of Michigan had to provide for direct cross-examination by the accused or his or her representative in all cases turning on credibility determinations. This difference in outcome has created a circuit split, which is often an important criterion for U.S. Supreme Court review, thus making it more likely that the Court may take this issue up in the future to resolve any difference of legal opinion with respect to the important question of due process rights under Title IX hearings and the extent of an accused student’s right to question an accuser. At least for now, in the First Circuit, questioning by a hearing panel is sufficient, while in the Sixth Circuit, questioning must be allowed by the accused or a representative.

Ultimately, however, both decisions draw attention to the need for serious inquiry during Title IX hearings and the importance of process and fundamental fairness. As noted by the court in Haidak, proceedings that choose “student comfort at the expense of serious examination” may be procedurally deficient and violate the accused’s due process rights.