Change in Standards for Investigations at Private Educational Institutions

Last month, a California state appeals court applied precedent set in the 6th Circuit Court of Appeals and reversed a campus disciplinary committee decision to suspend a student in a Title IX case because there was no opportunity to assess the credibility of the accuser through cross-examination. This ruling is particularly interesting because it was enforced against a private college. Across the country, other courts, which have typically been reluctant to get involved in campus disciplinary committee decisions, have heard similar Title IX cases and have also found that the due process rights of accused students were violated. So this ruling is consistent with a new trend.

John Doe v. Claremont McKenna College Case Study

In the facts underlying John Doe v. Claremont McKenna College, John Doe and Jane Roe, both freshmen in college, had a sexual encounter following a party. Jane later claimed that it was sexual assault—a violation of school policy. Claremont McKenna College (CMC) opened an investigation and hired a third-party investigator. John Doe requested that third-party investigator ask specific questions of all the witnesses, including Jane Roe. The investigator did not ask Jane any of the questions raised by John. The investigator finished his report and submitted it to the disciplinary committee at CMC. The committee comprised of the investigator and two other college faculty or staff reviewed the report and found John Doe had violated the school’s sexual misconduct policy—and suspended him. According to school policy, there was no requirement either that both parties appear at the committee hearing, or for the questioning of any witnesses by the committee. In this case, Jane did not appear before the committee.

John Doe appealed the case through CMC and was denied. John then filed a writ of administrative mandate at a trial court, claiming that he was denied the right to a fair trial. The trial court denied his request, holding that he had received a fair hearing. John Doe then appealed the decision to a California Court of Appeal.

The Court of Appeal agreed with John. They held that his due process rights had been violated. The Court analyzed several cases and found that specific principles apply in situations when the penalty is severe and the credibility of the accuser is determinative. The Court held that in these circumstances, the accused must be able to question the accuser—even if indirectly. The accuser must be present before the fact finder—either in person or by video—so that the fact finder can assess the credibility of the accuser.

Applying these principles to the current case, the Court held that the penalty (of suspension and possibly expulsion) was severe for John Doe, and the committee’s decision did turn on the credibility of Jane Roe. Based on these principles, the court applied the test and found both that John Doe was denied the right to cross-examine Jane Roe and that the fact finder could not assess Jane Roe's credibility because she was not present at the hearing. The Court of Appeal reversed the trial court.

Effect of the Ruling

What are the implications of this case? The frequency and cost of these Title IX cases are only going to increase. It would be prudent for colleges and universities to begin to take proactive steps to review their policies and procedures for disciplinary hearings to avoid costly litigation and damage to their reputation. In particular, schools may want to include a “hearing” aspect to their procedures, define what “severe penalty” means, and give instruction to fact finders on assessing the credibility of a witness.

This also shows a trend in investigations to provide due process to those who are accused. It is fundamentally unfair to allow accusations against someone without giving the person the opportunity to respond or to test the allegations in some ways, particularly where penalties are severe.

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