The United States Court of Appeals for the Sixth Circuit delivered another stinging rebuke of universities and their denial of basic due process protections to students in sexual assault cases. I have been a long critic of the Obama Administration’s rules forcing schools to strip away due process protections in such cases. For that reason, I supported the decision of the Trump Administration to rescind the “Dear Colleague” letter issued by the prior administration. The University of Cincinnati denied a student the right to confrontation — one of the key “reforms” of the Obama Administration demands.
Judge Richard A. Griffin wrote for the unanimous panel that the university proceedings fall far short of the minimal protections afforded under due process. The male student insisted that the sexual relations in his apartment in 2015 were entirely consensual. He met the women on a dating app and asked to question his accuser.
The woman failed to appear in the proceedings but the school proceeded anyway, It simply read the differing accounts and rule for the accuser.
UC officials denied him that right and the Sixth Circuit found that the school had failed to protect the rights for both students: “Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.” The court further noted:
“John Doe maintains that their sex was consensual; Jane Roe claims that it was not. Importantly, the Committee’s finding of responsibility necessarily credits Roe’s version of events and her credibility. The Title IX Office proffered no other evidence “to sustain the University’s findings and sanctions” apart from Roe’s hearsay statements. . . . Defendants insist that Roe’s nonappearance did not impact the fairness of the proceedings because Doe still had an opportunity be heard. The ARC panel invited him to “summarize what happened” in his own words, and Doe took advantage of that opportunity. He disputed Roe’s overall interpretation of events and a number of her specific claims. Because plaintiff was able to draw attention to alleged inconsistencies in Roe’s statements, defendants argue that cross examination would have been futile. We disagree. UC assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.”
As I have previously written, these proceedings often make a mockery of due process. Faced with a heavy-handed threat from the Obama Administration, universities agreed to strip away core protections from their students. The adjudication in this case was a arbitrary and capricious in its dismissal of fundamental rights of the accused. This is only the latest court to rule against such cases on the very elements muscled through by the Obama Administration. While various advocates have denounced the termination of the Obama letter, they ignore the array of judicial opinions condemning their denial of basic due process.
Here is the case: Doe v. University of Cincinnati