Sixth Circuit rules that due process affords a respondent in a sexual misconduct disciplinary proceeding with the right to test credibility through cross-examination

September 11, 2018

Higher Education Alert

Author(s): Steven M. Richard

Because a public university’s disciplinary decision turned on a credibility finding, the Sixth Circuit has ruled that the school was required to give the respondent an opportunity to cross-examine the complainant and adverse witnesses.

Sexual misconduct investigations and hearings often present conflicting statements and vexing issues when examining questions of consent. Credibility assessments of the complainant and respondent, as well as third-party witnesses, can tilt the evidentiary scale in support of a finding of responsibility or non-responsibility, particularly under a preponderance of evidence standard. Increasingly, courts have held that due process is violated where a disciplinary proceeding did not provide an accused student with a meaningful opportunity to cross-examine a complainant or witnesses and test the credibility of statements supporting the accusations. In the absence of such cross-examination, courts have found deprivations of a respondent’s constitutionally protected interests, as sexual misconduct findings and adjudications can impose immediate and lasting impacts on an accused student’s education and career.

Last year, in a widely discussed ruling in Doe v. University of Cincinnati, 872 F.3d 393 (6th Cir. 2017), the United States Court of Appeals for the Sixth Circuit held that when credibility is at issue in a sexual misconduct disciplinary proceeding, the Due Process Clause of the United States Constitution mandates that a public university must provide accused students with the opportunity to conduct cross-examination. On September 7, 2018, the Sixth Circuit applied and emphasized its precedent to hold that if a public university must choose between competing narratives to resolve a case, the university must give the accused student or his/her representative an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. The ruling in Doe v. Baum, et al., No. 17-2213 (6th Cir. 9/7/18), is an impactful decision not only from a constitutional due process perspective, but also regarding whether Title IX’s mandates have been met to effectuate a gender neutral determination that can withstand a legal challenge on erroneous outcome grounds.


John Doe and Jane Roe, students at the University of Michigan, met at a party hosted at Doe’s fraternity, where they drank, danced and eventually had sex. Two days later, Roe filed a sexual misconduct complaint against Doe with the university claiming that she was too drunk to consent. The university launched an investigation, which spanned three months during which the investigator collected evidence and interviewed Roe, Doe and twenty-three other witnesses. None of the third-party witnesses observed the actual incident. The male witnesses corroborated Doe’s story regarding the evening at issue, while all of the female students corroborated Roe’s. The investigator concluded that the evidence supporting a finding of sexual misconduct was not more convincing than the evidence opposing it. Because the evidence did not tip one way or the other, the investigator determined that the university should rule in Doe’s favor and close the case.

Roe appealed the investigator’s conclusion, and the case proceeded to the university’s Appeals Board, and a three-member panel reviewed the investigator’s report in two closed sessions (without considering new evidence or interviewing any students). The Board reversed, finding Roe’s description of events “more credible” than Doe’s and Roe’s witnesses to be more persuasive. As the disciplinary case moved to the sanction phase, Doe agreed to withdraw from the university when he was 13.5 credits short of graduating.

Doe filed suit claiming that the university’s disciplinary proceedings violated the Due Process Clause and Title IX. The university moved to dismiss Doe’s complaint, which a district court granted in full. Doe appealed the judgment to the Sixth Circuit, setting the stage for the important ruling addressed below. The Sixth Circuit reversed the lower court’s dismissal of Doe’s complaint, reviving and remanding the litigation for further proceedings at the trial court level.

Due process right to cross-examination

The Sixth Circuit’s three-justice panel found unanimously that the university violated Doe’s constitutional due process rights during the disciplinary proceedings. Citing to its ruling in University of Cincinnati, the Sixth Circuit stated that two points are clear: (1) if a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension and (2) when the university’s determination turns on the credibility of the accuser, the accused or witnesses, the hearing must include an opportunity for cross-examination. Doe’s due process rights were violated because he never had an opportunity to cross-examine Roe or her witnesses—not before the investigator or the Appeals Board.

The court found that the significance of Doe’s protected interests outweighed the “minimal burdens” that the university would face by allowing him a right to cross-examination. “Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life.” By contrast, “providing Doe a hearing with the opportunity for cross-examination would cost the university very little.” The court noted that the university provides a hearing with cross-examination in all misconduct cases other than those involving sexual misconduct charges, so the university can apply and oversee such procedures in this context. The fact that Doe was permitted to review Roe’s statement and submit a response to the investigator was simply not enough, as “written statements cannot substitute for cross-examination.”

The court made clear that its ruling does not mean that the accused student always has the right to personally confront the accuser or other witnesses, as universities have a legitimate interest to protect an alleged victim against harm or harassment. The court’s majority opinion, written by Justice Amul R. Thapar and joined by Justice Julia S. Gibbons, ruled that the university may allow a representative of the accused student to conduct cross-examination. While concurring with the result, Justice Ronald L. Gilman disagreed in a separate decision with the majority’s endorsement of a party’s representative conducting the cross-examination, concluding that his two colleagues traveled “a bridge too far.” Justice Gilman questioned the unclear scope of who can serve as the “representative”—an attorney, an administrator, a teacher, a family member or a friend? Justice Gilman warned that although a university may choose to allow a representative of an accused student to conduct the cross-examination, no court has previously held that it is constitutionally required. The majority responded to Justice Gilman’s “thoughtful questions” by reiterating that Doe sought an opportunity for a hearing with live cross-examination and due process requires that he receive one. “If the university is worried about the accused student confronting the accuser, it could consider other procedures, such as a witness screen. But if the university does not want the accused to cross-examine the accuser under any scenario, then it must allow a representative to do so.” This due process requirement could pose logistical challenges in its implementation, which will require careful delineation in applicable complaint processes and hearing protocols.

Title IX erroneous outcome analysis

While the court’s due process analysis will likely receive considerable attention, the Sixth Circuit’s split ruling on Doe’s Title IX erroneous outcome claim also merits careful consideration. Justices Thapar and Gibbons found that Doe’s complaint stated a plausible Title IX claim, while Justice Gilman concluded that it did not.

The erroneous outcome test requires that a student must plead two sets of facts to avoid dismissal: (1) facts sufficient to cast “some articulable doubt” on the accuracy of the proceedings and (2) a “particularized . . . causal connection between the flawed outcome and gender bias.” The majority concluded that because the university did not provide Doe an opportunity for cross-examination where credibility was a vital determination, he pled sufficient facts to cast doubt on the accuracy of the disciplinary proceeding’s outcome. Regarding the second prong, the majority cited to a federal government investigation two years before Doe’s disciplinary case, which reviewed the university’s processes for responding to sexual misconduct. Significant public discussion arose from the investigation in which commentators alleged poor responses to female complainants. The majority found that this “backdrop,” combined with other circumstantial evidence of bias in Doe’s disciplinary case, supports a plausible claim connecting the alleged erroneous result to gender discrimination. For example, taking the evidence in a light most favorable to Doe, the majority noted that the Appeals Board discredited Doe and all of the male witnesses who supported his version of the events, while crediting Roe and all of the female witnesses. The court noted that such “adjudicator bias” could have been impacted by the external pressure facing the university.

Dissenting, Justice Gilman stated that “no circuit has ever held that a student plausibly states a claim that deficiencies in his disciplinary proceedings were motivated by gender bias where the only fact that he alleges to show such bias is general pressure on the university to adequately address allegations of sexual assault.” Justice Gilman concluded that Doe failed to link the general pressure on the university to the particular proceedings in his disciplinary case. The dissent cited to the fact that the investigator found initially in favor of Doe, who acknowledged that the investigation was thorough. Further, the dissent stated that the allegations failed to show how the alleged “backdrop” led specifically to the Appeals Board’s differing conclusion, merely based upon its result alone.

This debate between the majority and dissent demonstrates the evidentiary question that is often dipositive to a Title IX erroneous outcome claim: What particularized facts sufficiently show that the alleged erroneous result was motivated by gender discrimination and not some other non-discriminatory cause? Courts continue to vary on the precise level of proof and the causal connection that must exist for a claim to survive a motion to dismiss allowing further proceedings or a later motion for summary judgment determining whether a case may reach a trial.


The Sixth Circuit’s ruling arrives as colleges and universities await the Department of Education’s proposed Title IX regulations. Like recent judicial rulings, the proposed regulations are expected to impact directly the propriety of an institution’s reliance upon a “single investigator” model, where students do not question one another and a hearing may not be held. While DOE and courts have consistently stated that higher education disciplinary processes do not equate to courtroom proceedings, the trend may be moving closer to such a result, which institutions may not be able to easily implement. Also, the extent to which “representatives” of an accused student will be permitted to participate actively in hearings and whom they may be will impact the adjudicatory procedures. Evolving administrative and judicial mandates are sending a clear signal and reminder that institutions must undertake continual and careful examination of their sexual misconduct complaint processes. We will continue to report on these developments in future alerts, particularly the extent to which DOE’s proposed regulations will build upon, clarify or expand the requirements of recent judicial rulings, such as the Sixth Circuit’s highly important decision addressed above.

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