Johnson & Cassidy previously provided insights about a federal Sixth Circuit Court of Appeals decision that addressed the obligations of public universities and colleges during Title IX sexual misconduct investigations. The Sixth Circuit recently revisited that topic in its decision in John Doe v. David H. Baum, a case arising from the University of Michigan. This newest decision highlights another case in which university officials struggled to balance their efforts to provide a campus free from sexual harassment against their obligation to ensure that disciplinary proceedings provide minimum due process to accused students.
John Doe and Jane Roe engaged in sexual activity after meeting at a fraternity party. Afterwards, Jane filed a sexual misconduct complaint against John with the university, alleging that she had been too intoxicated to consent to the encounter. John and almost all of the male witnesses stated to the university’s investigator that Jane was not visibly intoxicated. Jane and all of the female witnesses stated that Jane appeared intoxicated. The investigator found that the evidence of sexual misconduct did not outweigh the the evidence that no sexual misconduct occurred and recommended that the university find in John’s favor.
Jane appealed to the university’s Appeals Board. The panel reversed the investigator based on the conclusions that Jane’s description of events, as reflected in the investigator’s report, was “more credible” and the witnesses describing her as visibly intoxicated were more persuasive. Rather than face potential expulsion, John agreed to withdraw from the university. He then filed a lawsuit against the university for violations of the Due Process Clause of the U.S. Constitution and of Title IX. The trial court dismissed his claims, but the Sixth Circuit reversed the dismissal concluding that John had plausibly alleged that the university’s Appeals Board violated his due process rights by failing to provide John or his representative an opportunity to cross-examine Jane and her witnesses before finding him responsible for sexual misconduct because the case turned on credibility. The Sixth Circuit further concluded that John plausibly alleged that the Appeals Board reached an erroneous outcome under Title IX based on gender bias. The Court reasoned that the external pressure on the university from a Department of Education investigation of whether its sexual misconduct proceedings discriminated against women, combined with the Appeals Board’s conclusion from a cold record that the female witnesses were more credible than the male witnesses, plausibly supported John’s claim of gender bias.
The dissenting opinion in Doe v. Baum is also noteworthy. The dissent pointed out several important due process questions raised by the majority’s holding: “For example, who is the ‘representative’ that will be allowed to question witnesses on the accused’s behalf? Is it an attorney? . . . . Should the representative instead be a teacher or an administrator? . . . . Could the representative be a friend or family member of the accused?” The majority conceded that the “dissent poses a number of thoughtful questions about what universities need to do going forward,” but declined to provide specific guidance on how universities should comply with the due process requirements discussed in the decision beyond stating “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.”
The Department of Education’s position on universities’ Title IX obligations in sexual misconduct investigations is also somewhat of an open question. Last year, the Department withdrew the previous guidance set forth in its 2011 Dear Colleague Letter, issued interim guidance, and commenced rulemaking on universities’ Title IX responsibilities. Most recently, the New York Times reported in August 2018 that it obtained a copy of the proposed Title IX rules that the Department plans to release. One need only review the stark divide in the commentary on the Department’s proposed rules to understand the pressure universities face to balance protection of victims against due process to the accused in Title IX sexual misconduct investigations.
Nonetheless, the Doe v. Baum decision has certain apparent implications for universities. Compliance with the Department of Education’s upcoming Title IX rules will not automatically ensure that universities also comply with the Due Process Clause. The Sixth Circuit strongly indicated that Doe’s due process claim, if not the Title IX claim, will survive a motion for summary judgment. The university now faces the prospect, therefore, of defending against at least Doe’s due process claim in a trial. Another clear implication is that universities should implement a plan for who is permitted to cross-examine an accuser as representative of the accused student so that an accuser does not have to face the potential trauma of direct questioning by the alleged attacker. Finally, although the Sixth Circuit covers federal courts in Tennessee, Kentucky, Michigan, and Ohio only, universities in other states that decline to follow the due process guidance from the Sixth Circuit run the risk that other federal circuit courts of appeal will reach the same conclusions.
More broadly, Doe v. Baum serves as the latest warning that universities failing to conduct sexual misconduct investigations that comply with the Due Process Clause and Title IX in the first instance will likely face a second round of costly, lengthy litigation. Campus sexual violence is a significant issue that is properly receiving serious attention from universities and the federal government. However, procedural errors in sexual misconduct investigations often ensnare sexual assault survivors in their alleged attacker’s subsequent litigation against the universities. Courts are also starting to address instances in which universities’ inadequate investigations resulted in erroneous findings of sexual misconduct. The trend in the case law demonstrates that universities’ obligation under Title IX to provide campuses free from sexual harassment further requires those universities to conduct sexual misconduct investigations that include several of the same safeguards as those provided to the accused in a courtroom.
 Recent Federal Appellate Decision Highlights Risks Posed to Public Universities and Colleges from Constitutional Violations in Title IX Sexual Misconduct Investigations, Johnson & Cassidy, Feb. 20, 2018, http://www.jclaw.com/recent-federal-appellate-decision-highlights-risks-posed-to-public-universities-and-colleges-from-constitutional-violations-in-title-ix-sexual-misconduct-investigations/.
 Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).
 Department of Education Issues New Interim Guidance on Campus Sexual Misconduct, Dep’t of Educ., Sept. 22, 2017, https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct.
 Erica L. Green, New U.S. Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges, N.Y. Times, Aug. 29, 2018, https://www.nytimes.com/2018/08/29/us/politics/devos-campus-sexual-assault.html.
 Compare Donna Freitas, Betsy DeVos is Dismantling Protections for Students Who Allege Sexual Assault. But Colleges Don’t Have To., Wash. Post, Sept. 20, 2018, https://www.washingtonpost.com/education/2018/09/20/betsy-devos-is-dismantling-protections-students-who-allege-sexual-assault-colleges-dont-have/?utm_term=.2d04257eb14d, with George F. Will, Betsy DeVos is Trying to Stop an Assault on Civil Rights on College Campuses, Wash. Post, Sept. 7, 2018, https://www.washingtonpost.com/opinions/betsy-devos-is-trying-to-stop-an-assault-on-civil-rights-on-college-campuses/2018/09/07/eb4b9a52-b208-11e8-9a6a-565d92a3585d_story.html?utm_term=.5851b79fae73.