The Cross-Examination of Complainants And the Due Process Rights of Respondents in Student Disciplinary Proceedings After Haidak v. University of Massachusetts-Amherst
by R. Victoria Fuller
In Haidak v. University of Massachusetts-Amherst, the First Circuit Court of Appeals discussed the obligations of public colleges and universities under the Due Process Clause of the Fourteenth Amendment to the United States Constitution when conducting student disciplinary proceedings. Importantly, the Court held that a responding party has no right to cross-examine the complainant or other adverse witnesses, even where the case turns on credibility determinations. The holding represents a significant split from the Sixth Circuit and further leaves public educational institutions without concrete guidance regarding due process requirements where a non-adversarial procedure is utilized in a contested disciplinary proceeding.
The Complaint, and the University’s Response
In Haidak, a female student reported to the university that a male student, with whom she had been romantically involved, physically assaulted her.
The university’s code of conduct required the university to send the responding party a notice of charge (“NOC”) and provide 48 hours to request a disciplinary conference. The code of conduct permitted an interim sanction, such as a suspension, without prior notice, but only where the NOC involved a serious violation and a university official had determined that the student was a threat to self, others, or property.
The university issued an NOC to the respondent for physical assault and endangering behavior to persons or property, which included a no-contact order. Regardless, the male and female student promptly resumed consensual contact.
After the complainant’s mother alerted the university to the no-contact order violation, the university issued the respondent a second NOC for harassment and failure to comply with the direction of university officials, which included the same no-contact order.
Contact between the students continued. The complainant (and her mother) again reported to the university that the respondent violated the no-contact order. The university took no action for two weeks and then issued a third NOC, this time suspending the respondent without prior notice. The university informed the student that he had a right to a meeting to discuss the suspension with a university official, but took no immediate action to schedule a hearing.
The respondent remained suspended for approximately two months over the summer. Near the end of the summer, the university notified him that the suspension would continue pending a hearing on the assault charge, but the university took no action to schedule one. At the beginning of the fall semester, the respondent withdrew from the university. The university then offered him three potential dates for the hearing, and he chose a date on which he knew he could not attend in-person, only by phone.
The hearing board (“Board”) found the respondent responsible for assault and failure to comply with the no-contact order, but not for endangerment or harassment. Pursuant to the code of conduct, the Board sent its report to the Dean of Students. In reliance on the Board’s report, and in light of the student’s prior disciplinary history, the Dean of Students expelled him.
The University Violated Due Process By Suspending the Respondent Without Prior Notice and a Hearing
Students at public educational institutions are entitled to certain procedural due process rights. The two essential requisites of procedural due process are (1) prior notice; and (2) a hearing. Because suspension deprives a student of all of the benefits of being enrolled, the Court recognized due process generally mandates prior notice and a hearing. Although a university may suspend a student before providing notice and a hearing in limited, exigent circumstances, the university could not establish such circumstances. Indeed, it waited nearly two weeks after learning about the second no-contact order violation to suspend the respondent. Moreover, the “informal interview” that the respondent received after suspension was insufficient to satisfy due process. If the university had conducted a hearing before suspending the student, it would have learned that the continued contact was non-threatening and mutual, and it likely would not have suspended him in the first place. Therefore, the Court held that the university violated the respondent’s right to due process by suspending him for five months without prior notice or a hearing.
The University Did Not Violate Due Process By Denying the Respondent the Opportunity to Cross-Examine the Accuser
The Court held that the respondent’s due process rights were protected, however, at the eventual Board hearing. In particular, the Court noted that (i) the hearing was conducted in accordance with the university’s written procedures, which were provided to the respondent in advance; (ii) the university bore the burden of proof; (iii) the hearing was limited to charges of which the respondent received detailed notice; and (iv) the respondent was invited to be present (although he chose to attend by telephone), hear all evidence against him, respond directly himself, call witnesses, and have an attorney.
Because the hearing turned directly on credibility determinations, the student argued that he had been denied a due process right because he was not allowed to cross-examine the complainant. Instead, he had submitted questions for the Board to pose to her, and a university official eliminated many of the questions. The Court rejected this argument.
The Court noted that the university used a non-adversarial, “inquisitorial” system, under which the university assumed responsibility for investigating the facts and developing the arguments. The Court held that an inquisitorial system did not, in itself, violate the Due Process Clause, as long as the university conducted reasonably adequate questioning. That said, the Court recognized that the university’s procedure could render a proceeding unfair, because: (1) the Board’s manual instructed hearing officers to calm a complaining student with non-leading, non-adversarial, and “easy” questions; and (2) a university official struck some of the respondent’s proposed questions before providing his list to the Board. Nonetheless, having reviewed the hearing, the Court concluded that, while the procedure rendered the potential for unfairness, namely a failure to effectively confront an accuser, the hearing was not unfair because the Board adequately questioned the complainant.
The First Circuit’s holding differs from that reached by the Sixth Circuit. In Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018), the Sixth Circuit held that due process mandated that the school permit cross-examination of an accuser (and other adverse witnesses) in all cases turning on credibility determinations. Although recognizing that cross examination, in the “hands of an experienced trial lawyer is an effective tool” to discovering the truth, the First Circuit declined to adopt the Sixth Circuit’s approach, in part because the Court determined that it had “no reason to believe that questioning of a complaining witness by a neutral party is so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation.”
Would the outcome have been different, though, if the university official had struck a few more questions? Would the Court have held that the Board violated the respondent’s due process rights by failing to conduct an adequate examination? Given this inherent potential for procedural unfairness, a public educational institution that implements a non-adversarial system with no opportunity for cross-examination arguably invites judicial scrutiny each and every time it conducts a hearing in a case turning on credibility, putting courts in the business of deciding the adequacy of the examination on a case-by-case basis.
Indeed, Haidak may lead public educational institutions to conclude that the only way they may unquestionably comply with due process is to permit cross-examination in such proceedings, and thus abandon the truly inquisitorial system. However, if the educational institution chooses to permit cross-examination in an otherwise non-adversarial system, how should it do so? Through questions submitted to the hearing panel, or by permitting the respondent or a representative to conduct the cross-examination (and thereby risk re-traumatizing a complainant)? The answers to these types of questions will no doubt have to be addressed by future cases.
Where disciplinary proceedings turn on credibility, public educational institutions that have implemented a non-adversarial system will have to decide whether to permit cross-examination, and if so, how it should be conducted. Although the First Circuit recognized that the inquisitorial, non-adversarial approach did not alone deprive a responding student of a constitutional right, it made clear that the improper implementation of such a system may violate his or her rights. Haidak may inadvertently have invited students unhappy with a credibility determination after a non-adversarial proceeding lacking cross-examination to file suit challenging whether the questioning at the hearing was “reasonably adequate” to satisfy due process. Without a doubt, Haidak is not the last we will hear on this important legal issue.
Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.