A federal appeals court has agreed to block the University of Cincinnati’s suspension of a student, saying the institution violated his rights by not allowing him to question the female student who accused him of sexually assaulting her.
The decision by the U.S. Court of Appeals for the Sixth Circuit follows the announcement Friday from Education Secretary Betsy DeVos that she would pull guidance on Title IX investigations and adjudication the Obama administration released in 2011.
Title IX of the Education Amendments of 1972 is the federal law prohibiting gender-based discrimination. The Obama decree, which came in the form of a Dear Colleague letter and was meant to clarify the law, proved controversial and was criticized for being slanted against those accused of sexual assault. DeVos said the department will write a new regulation after taking feedback; the department has provided information to colleges on how to handle sexual assault cases in the interim.
The appeals court on Monday sided with a federal judge's 2016 preliminary injunction blocking the university's one-year suspension of the accused student. Lawyers who examined the appeals court’s opinion varied on how much they thought it would set legal precedent.
A spokesman for Cincinnati, Greg Vehr, said university officials are reviewing the ruling.
"The university continues to strive to create the best environment it can for all our students by means of disciplinary processes and proactive efforts on how we can help prevent these events from occurring at all. We are actively working to create a culture of consent," Vehr said in a statement.
The two students, who met on Tinder and were cited in court documents under the pseudonyms John Doe and Jane Roe, had sex in 2015 -- the male student said the encounter was consensual, but the female student said it was not.
Three weeks later, Roe reported to the university she had been assaulted. Five months following that, Doe was officially notified he had possibly violated Cincinnati’s conduct code, specifically around sexual discrimination and harassment.
In 2016 the university held a hearing to determine whether Doe was guilty. Court documents indicate this was primarily a “he said/she said” case, with no physical evidence supporting either student. The female student did not appear at the hearing, and university officials did not provide any avenue for Doe to question her, even indirectly.
“Defendant's failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair,” the appeals court ruling states.
The 2011 Dear Colleague letter recommends that a victim of sexual assault not meet with their attacker face-to-face. The court ruling quotes the letter and notes that Doe never asked to confront his accuser directly.
“By having options to pose questions to an accuser without subjecting them to possible intimidation by direct questioning by the accused, it is possible to uphold due process requirements and protect accusers as well,” S. Daniel Carter, a longtime campus safety consultant and president of Safety Advisors for Educational Campuses, wrote in an email.
The university panel adjudicating that hearing found that Doe had breached the student code of conduct, and he was later given a two-year suspension, reduced to a single year after he appealed to administrators.
Doe then filed his lawsuit. The Associated Press reported that he remains enrolled as a graduate student at the university.
Though the ruling does clearly mention the suggestions on how to properly handle these hearings, Carly N. Mee, a lawyer with SurvJustice, a nonprofit advocating for sexual assault survivors, said she was concerned with the court’s emphasis on cross-examination.
She said that accused students would think they have the right “to aggressively interrogate a survivor face-to-face, without the panel mitigating this trauma by asking any questions itself.”
“I am concerned that, in this political climate, a decision like this will be taken to an extreme so that schools end up allowing direct questioning, which would severely retraumatize survivors in hearings and ultimately discourage them from coming forward,” Mee said via email.
But Brett A. Sokolow, a lawyer, executive director of the Association of Title IX Administrators and president of the NCHERM Group, a risk-management firm that works with colleges, called the ruling “narrow.”
He said this decision wouldn’t cause broad cross-examination in hearings, but said it does uphold the idea that credibility is key in these cases, and when one party doesn’t show up for the process, “the right to question is unfairly curtailed.”
“If this is a good decision that is followed by other courts, it may spell the end of public universities proceeding to a hearing without the active participation of the reporting party, at least where credibility is disputed and there is no admission of responsibility,” Sokolow said via email.
Sokolow said that a court in another jurisdiction could potentially rule the other way, however, considering that both Doe and Roe had submitted written statements. He urged institutions across the country to study the decision, particularly in light of all the news surrounding Title IX at the moment.