Cross-Examination as an Engine for Truth: One of the Year's Better Decisions

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A student who is defending a disciplinary claim against a college or university under Title IX faces potentially severe and long-term consequences, especially if the discipline is a suspension or expulsion. Ironically, those consequences can be more severe than those faced by a similarly situated criminal defendant who well may be able to avail himself or herself to one of the available diversionary programs that ultimately leaves him or her with no criminal record.

In Doe v. Baum, 903 F.3d 575 (6th Cir. Sept. 7, 2018), the U.S. Court of Appeals for the Sixth Circuit recently recognized such consequences facing a student who is defending a Title IX claim under 20 U.S.C.S. §1681(a). “Being labeled a sex offender by a university has both an immediate and lasting effect on a student’s life. The student may be forced to withdraw from classes and move out of university housing. His personal relationships might suffer. And he could face difficulty obtaining educational and employment opportunities down the road, especially if he is expelled.” Id. at 582 (citations omitted).

Recognizing such consequence, the court is Baum held that the University of Michigan deprived a student of his rights to a due process by failing to provide him with an opportunity to cross-examine his accuser when the case turned on the accuser’s credibility.

The Baum court recognized that cross-examination is “the greatest engine ever invented for uncovering truth.” Id. at 583 (citations omitted). In undertaking a Mathews v. Eldridge analysis, the court considered the competing interests and recognized the potentially devastating consequences of a sanction of suspension or expulsion while observing that the university would bear a minimal burden by allowing cross-examination.

We applaud the Baum decision and believe that all of the federal circuits and state courts should adopt this decision entitling students facing Title IX claims the opportunity to cross-examine their accuser when the credibility of the accuser is at issue. Although Baum is limited to public universities and colleges, we believe that it should extend to private universities and colleges in dealing with Title IX claims because the interests facing those students are no less substantial.