A Potential Title IX Supreme Court Case?

A split in two federal appeals courts opinions could set up a court challenge at the highest level and give clarity on due process in campus sexual violence cases.

August 8, 2019
 

A federal appeals court on Tuesday found that a former University of Massachusetts at Amherst student accused of assaulting and harassing his girlfriend was deprived of due process rights when university administrators suspended him without first holding an official hearing.

The ruling from the U.S. Court of Appeals for the First Circuit also represents a split from a significant opinion last year by the Sixth Circuit's appeals court on the due process rights of students accused of sexual misconduct. It ruled in that decision that students or their representatives must be allowed to directly question their accusers in sexual violence cases.

At the time, experts in Title IX of the Education Amendments of 1972, the federal law barring sex discrimination and sexual assault on campuses, heralded the opinion as a reformation of due process in such cases, at least among the collection of Midwestern states the Sixth Circuit encompasses. The Sixth Circuit is becoming known for producing more radical opinions in Title IX cases that have made waves among lawyers and college administrators.

The First Circuit opinion agrees with the Sixth Circuit, to an extent, that cross-examination should be mandated in some form. But U.S. Circuit Court Judge William Joseph Kayatta Jr. of the First Circuit wrote in his ruling that the questions don't necessarily need to come from students or their proxies. Parties in a disciplinary dispute can be questioned by a panel of officials and students who are largely responsible for deciding the case, as was the process at UMass Amherst.

The discrepancies in the two courts’ opinions could create an opening for a challenge in the U.S. Supreme Court, though some legal analysts doubt that outcome.

Federal Title IX rules remain in flux. Education Secretary Betsy DeVos nearly two years ago pulled Title IX guidance issued during the Obama administration, which came in the form of a Dear Colleague letter in 2011 and is largely credited with giving sexual assault survivors more protections. Due process activists said the rules violated the rights of the accused. DeVos replaced the guidance with draft regulations that gave colleges more flexibility in adjudicating Title IX cases. Those regulations have yet to be approved.

If those regulations, once finalized, conflict with court decisions across the country, it could lead to chaos among colleges and universities grappling with Title IX cases, experts and lawyers say. And in the interim, institutions, depending on where they're located, will need to follow different policies based on a patchwork of legal rulings.

“I am concerned that these cases give insufficient attention to institutional interests in academic freedom and/or administrative autonomy,” said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. “College court is essentially subject to appeal in federal court more routinely than ever. And instead of uniform national standards created as such, it now matters which jurisdiction you are in. Due process in higher education is becoming a ball of confusion -- a mix of conflicting cases and regulations in flux. Is it fundamentally fair to colleges to create college court this way?”

The UMass Case

Lauren Gibney, a UMass Amherst student, and her mother reported to the university in 2013 that Gibney's boyfriend, James Haidak, with whom she had a “tumultuous relationship,” had assaulted her on a trip in Barcelona while they were studying abroad.

Gibney alleged Haidak put his hands around her throat, pushed her onto a bed, punched himself in the face with her fists and squeezed pressure points on her body and during an argument. Haidak’s account differed. He said he only restrained Gibney because she struck him first and he was attempting to hold her back while she tried to kick him in the groin.

Following Gibney’s report, university administrators forbade Haidak to contact her. Both Gibney and Haidak ignored the order. During the following month, Haidak called Gibney hundreds of times and sent her thousands of text messages -- contact that was “largely welcomed and reciprocated,” the opinion states.

University officials told Haidak on two more occasions that he was violating the university’s code of conduct by potentially harassing Gibney and disregarding the initial no-contact order. Administrators then suspended Haidak in June 2013 without holding a disciplinary hearing. The punishment remained in place for five months.

Haidak and Gibney’s relationship lasted through September 2013, when Gibney finally broke it off. Haidak drunkenly confronted Gibney at a bar where she worked, according to court filings. And during a separate incident, while he was also allegedly intoxicated, he had threatened to kill himself and jumped out of Gibney’s moving car.

The university held a hearing on the accusations against Haidak in November 2013, during which he was found responsible for the initial assault against Gibney in Barcelona and for violating the university’s no-contact orders. But the hearing panel found that he was not guilty of harassment. Haidak was expelled because he had already violated the conduct code twice -- once, he was accused of drunkenly assaulting another student, but ultimately was found responsible for a generic charge of "violating university policy." Another time, he was arrested for disturbing the peace, among other charges.

Haidak sued university officials, alleging that they infringed on his due process rights and violated Title IX by holding a biased hearing. While a federal district court dismissed his claims entirely, the appeals court upheld one allegation: that his suspension had been constitutionally unfair.

Kayatta, the First Circuit judge, wrote that Haidak had been given no prior notice of a hearing about the suspension before it happened. While universities can legally do this in extreme circumstances, Kayatta noted there appeared to be no urgency among officials -- they waited 13 days after they learned Haidak had violated the original no-contact order to suspend him.

“The university offers no evidence suggesting that it was infeasible to provide some type of process during the available 13 days before it imposed a suspension,” Kayatta wrote.

UMass Amherst did not respond to request for comment.

Haidak’s due process rights were not ignored simply because the university hadn’t allowed him to interrogate Gibney directly, according to the opinion. The university let the panel determine the facts of the case and ask questions, not Haidak or Gibney, in a process that is called an “inquisitorial model,” Kayatta wrote. The court did not follow the Sixth Circuit’s opinion that an accused student had to be the one to confront an accuser -- and it was unconvinced that allowing Haidak to do so would have been helpful.

Brett Sokolow, president of the Association of Title IX Administrators, agreed. He said that it’s “human arrogance” to believe cross-examination between students would lead to new facts or better evidence -- in fact, as the First Circuit noted, it may just devolve into an unproductive argument.

Sokolow also was unconvinced that the differences between the First and Sixth Circuit rulings will lead to a Supreme Court challenge. If the First Circuit had ruled cross-examination wasn’t required at all, then it would be more significant, but it’s “just cross-examination in a different style,” he said.

Many institutions use this inquisitorial model and do not allow direct questioning between the accused and an accuser, which is something the 2011 Dear Colleague letter discouraged, said Laura Dunn, founder of sexual assault survivor advocacy group SURVJustice, as well as the L.L. Dunn Law Firm. Dunn said it was crucial the First Circuit recognized this model as legitimate.

“This is a thrilling decision, because it creates a circuit split that may well rise to the Supreme Court, though I would hope Justice Kavanaugh would recuse himself given his expressed disdain for inquisitorial proceedings into his own sexual misconduct accusations,” Dunn said.

Joshua Richards, a lawyer who specializes in higher education at the Philadelphia-based firm Saul Ewing Arnstein and Lehr, said the split between the circuits is dramatic, but as more cases work through court systems across the country, colleges will see whether the Sixth Circuit opinion is more of an outlier or the standard. Colleges and universities have largely followed a more measured approach to adjudicating Title IX cases, similar to the model the First Circuit endorsed, he said.

“There are other cases in every circuit in the country, and the other circuits will confront this issue and have to rule,” Richards said.

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