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Violated her constitutional right to cross-examination

Ohio State University has made Title IX history: It’s apparently the first school on the losing end of a due-process challenge by an accused female student.

U.S. District Judge Edmund Sargus blocked the public university from expelling a female student accused of fondling and kissing a drunk student and, later, having a nonconsensual threesome.

Citing binding precedent from the 6th U.S. Circuit Court of Appeals last fall, the judge said Tuesday that Ohio State had unconstitutionally deprived “Jane Roe” of her right to “cross-examine adverse witnesses” in a proceeding that hinged on credibility.

Sargus went out of his way to avoiding referring to the three accusers with gender pronouns, suggesting the sexual activities were not fully heterosexual or the accusers did not all identify as cisgender.

His order includes a lone gender pronoun for one accuser (“her”), which appears to have been left in accidentally, and one reference to either a biological male or a sex toy (“agreed to intercourse”).

‘Witnesses’ who aren’t witnesses – and didn’t testify

The two incidents took place about two months apart in the fall of 2016, and their hearings were also two months apart the following spring. Roe’s two-year suspension in the first was converted to expulsion in the second.

In the first, Roe allegedly sexually touched an acquaintance “intentionally” at a showing of the Rocky Horror Picture Show. Both had been drinking heavily.

Two eyewitnesses testified at the disciplinary hearing, according to Judge Sargus’s summary. One claimed to have observed Roe “encroaching” on the accuser while that person was “not 100 percent sober or conscious,” and the other only saw Roe and the accuser sitting together.

A third person said the accuser claimed to have learned about being “felt up” from the first witness. After being told what happened, the accuser testified they “personally remembered … being felt up by [Roe] while floating in and out of consciousness.” Roe said she “did not interact” with the accuser other than sitting together for a while.

But the “meeting notes” from interviews with three witnesses who did not testify were included in the hearing packet. Two of them alleged the accuser was drunk, and that Roe kissed and “ran her hands up and down” the accuser’s body while that person was “slouched” with “closing” or closed eyes.

MORE: 6th Circuit requires cross-examination in campus rape cases

The second incident involved “drinks and dancing” followed by group sex at Roe’s house with two new accusers.

Unlike the first proceeding, which took place two months earlier, the accusers neither attended nor testified at the hearing. Two witnesses were interviewed in both proceedings, but only one testified at both, and even that person did not claim to have seen Roe and the accusers that second night.

Instead, that person relayed an alleged conversation between one accuser and another “witness” who didn’t observe Roe and the accusers that night.

In fact, five of the seven purported “witnesses” had simply been told by one or another accuser about the incident. The other two were roommates of Roe and one accuser, and inexplicably they are given gender pronouns.

Roe’s male roommate claimed the person (“her”) who came downstairs with Roe that night “did not exhibit any signs of intoxication.” One accuser’s “roommate and partner” is identified as female: She drove to pick up the accuser, who was “extremely intoxicated” and needed help getting in the car.

Four of seven witnesses testified, and again, interview notes with all seven were included in the hearing packet. Roe testified the accusers took off her clothes, they were not “substantially impaired” and she obtained their consent for “every sexual act.”

The accusers asked for their written statements to be read aloud at the hearing, but they were not read after Roe objected. These descriptions of “the impact” of Roe’s actions were still included in the packet, however, as were “pre-hearing statements” from the accusers.

Those statements claimed that one accuser “agreed to intercourse” but was “too drunk to consent,” while the other was “forced” to perform oral sex on Roe while “severely intoxicated.”

Your ‘iterative process’ has never been approved as constitutional

Roe only brought one “procedural deficiency” before Judge Sargus for the purpose of her motion to block Ohio State from expelling her: Roe’s inability to “effectively cross-examine adverse witnesses.”

The judge agreed Roe has a “strong likelihood of success” on her so-called Section 1983 procedural due process claim, which regards the constitutional obligations of public officials such as university administrators.

The 6th Circuit has already held that students facing suspension or expulsion must be given notice of the charges, an explanation of evidence against them and an opportunity to argue before an “unbiased decision maker.”

In a lengthy explanation of the legal precedents affirming the centrality of cross-examination, Sargus notes that his appellate court has further required the use of cross-examination in university disciplinary cases that hinge on “credibility.”

The judge delved into that decision against the University of Cincinnati last fall, which is “instructive and binding” on his decision. The university hearing panel had refused to assess the credibility of the accuser, who did not show up to the hearing and thus could not be cross-examined by anyone.

The two cases share “important similarities” in that statements by adverse witnesses were used against accused students, but without any ability to cross-examine those absent witnesses, Sargus said.

Federal judge blocks Ohio State from expelling female student deprived cross-examination by The College Fix on Scribd

MORE: Federal judge validates gay student’s due-process suit against Brandeis

He rejected Ohio State’s claim that two absent witnesses in the first incident made statements that were “duplicative” of in-person testimony by the accuser, who refused to answer questions in the hearing.

In the second incident, Ohio State’s explanation for why Roe had no right to cross-examine her accusers – in part, that she couldn’t explain how she received consent and she admittedly has trouble “setting boundaries” while drinking – also fell flat for Sargus.

The hearing officer still chose to believe the accusers – the only others present during the group sex – without hearing or seeing them, and the university has mischaracterized Roe’s statements, the judge wrote:

Roe has not admitted a fact that, standing alone, would allow the university to discipline her. In her statements to the investigator and in her testimony at the hearing, Roe insisted that the complainants were not too intoxicated to consent and that she obtained the complainants’ consent for every sexual act … Defendants have not identified any provision of the OSU Code of Student Conduct that prohibits what Roe admitted – consensual sex between individuals who were not substantially impaired.

The university said that Roe “bragged about having a three-way” before claiming she didn’t consent to everything, and together with her “boundaries” remarks, these showed she was not credible.

But Sargus said these were simply among “several factors” the hearing officer considered in credibility determinations, and can’t stand alone to judge Roe. He also cited evidence in the record that contradicted the university’s claims that Roe couldn’t explain how she got consent and that the accusers’ written statements “corroborate” each other.

And the judge flatly rejected the adequacy of Ohio State’s “iterative process,” rebuking the university for failing to show any appellate precedent for a “pre-hearing investigation” as a substitute for cross-examination:

Cross-examination helps fact finders make credibility determinations because, among other things, it permits fact finders to observe witnesses’ demeanor while testifying … [and] allows an accused student to test, in real time, a witness’s testimony. …

Cross-examination, moreever, does more than allow a fact finder to observer a witness’s demeanor: it allows the accused to test a witness’s testimony for infirmities, such as forgetfulness, confusion, misperceptions, or evasion, and for possible biases, prejudices, or ulterior motives.

Sargus again returned to the “deep roots” of cross-examination in the U.S. legal system, from the Sixth Amendment to the Federal Rules of Civil Procedure, which lay out a procedure for new judges taking over existing cases to “recall witnesses” and personally observe their testimony.

If Ohio State wants to discipline Roe, it needs to start a new proceeding that provides her constitutional due process, Sargus ordered, but specified that it’s not obligated to let her back on campus.

V. powerful language in decision on x-examination in decision; Judge Edmund Sargus (Clinton nominee) cites its "central role" as a "truth-seeking device in our justice system." pic.twitter.com/6H1c4t480b

— KC Johnson (@kcjohnson9) April 17, 2018

MORE: Brandeis says waking your boyfriend with a kiss is sexual assault

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