The College Fix

Will Supreme Court act on cross-examination circuit split?

Public colleges in New England were put on notice this week: They are not allowed to severely punish students based solely on unvetted allegations.

The 1st U.S. Circuit Court of Appeals ruled against the University of Massachusetts-Amherst for immediately suspending a student accused of assaulting his girlfriend.

James Haidak remained suspended for five months without a formal hearing, violating his constitutional right to due process, according to the three-judge panel.

The opinion by Judge William Kayatta concluded that public colleges must formally grant accused students the opportunity to be heard before punishment, absent some documented “exigency.”

But the 1st Circuit stopped far short of the due-process requirements set over the past two years by the 6th Circuit, which has jurisdiction over Michigan, Ohio, Kentucky and Tennessee.

It did not require universities to let accusers and accused students cross-examine each other directly or through representatives such as lawyers. The panel also gave broad leeway to adjudicators to decide which questions to ask each party from the other.

This sets up a circuit split that could draw the Supreme Court’s attention, though experts on student conduct proceedings were divided on how likely that was, in a report by Inside Higher Ed.

A cautionary tale about ‘imminent threat’ determinations

Even though it’s limited to New England, the ruling is sure to stir the pot across American colleges and universities. Both public and private institutions have been facing increased scrutiny from judges for sanctioning accused students just as investigations are starting.

The trend exploded in the aftermath of the Obama administration’s “Dear Colleague” letters on sexual misconduct proceedings, which threatened to cut federal funding from universities that did not comply.

Though his client’s expulsion was upheld, Haidak’s lawyer Luke Ryan told The College Fix that the ruling against the immediate suspension “is an important victory for both Mr. Haidak and other students who have been punished without getting a chance to tell their side of the story.”

The ruling should spur colleges “to be much more careful about the way they make ‘imminent threat’ determinations” going forward, the basis for immediate suspensions, Ryan wrote in an email.

MORE: 6th Circuit cites ‘My Cousin Vinny’ to justify Title IX cross-examination

Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, concurred that the ruling puts forth a new standard for university investigators to consider both parties’ narratives before determining discipline.

The decision “will help protect students at the many institutions that offer no opportunity whatsoever for meaningful questioning,” she told The Fix in an email: “Despite the fact that the ruling was not favorable to the plaintiff on the facts of this case, I still consider it to be a positive precedent as far as students’ due process rights are concerned.”

UMass-Amherst media relations did not respond to a College Fix email asking for comment on the ruling, and to shed light on why it altered the rules for Title IX proceedings during Haidak’s proceeding.

On interim punishment, a first-of-its-kind ruling among the post-DCL lawsuits: court holds that @UMassAmherst's hardly atypicalhandling of case (quick suspension w/virtually no inquiry) violated due process. pic.twitter.com/hBpAqBWYU2

— KC Johnson (@kcjohnson9) August 6, 2019

Accuser hid fact that she ‘largely welcomed and reciprocated’ his contact

The Title IX proceeding originated from a fight between Haidak and his girlfriend, Lauren Gibney, on a study-abroad program in Barcelona, where high tensions escalated to violence in April 2013.

But the court’s findings against the university are based on its failure to explore whether Haidak’s continued contact with Gibney, after he was issued a no-contact order, was “largely welcomed and reciprocated” by her. (It was.)

The couple “got into an argument that turned physical” after they left a club, according to the panel’s summary. Each accused the other of instigating the physical altercation, but UMass investigators and the trial court credited Gibney’s account.

Gibney’s mother reported Haidak to the university for physically assaulting her daughter, and Gibney later filed a report herself. The complaint prompted the university to act fast, but not carefully.

When Gibney’s mother found “hundreds of calls and thousands of text messages from Haidak” to her daughter after the no-contact order was issued, Gibney portrayed the contact as one-way to Allison Berger, the associate dean of students managing the case.

MORE: UMass took 330 days to schedule hearing; withholds accused student’s diploma

The accuser continued to hide the fact that she was initiating communications with Haidak, even as she kept presenting evidence of Haidak’s alleged stalking. Gibney claimed only that she got “comfortable with talking” when he initiated contact, “and therefore would respond some and answer a few calls.”

The appeals panel said Gibney sent “approximately seven hundred text messages to Haidak” after the no-contact order, and “many messages after May 28,” the date of a second no-contact order.

But Berger did not probe Gibney’s potential role, and may not have even clearly communicated to her that she shouldn’t be contacting Haidak.

Thirteen days after her last meeting with Gibney and her mother, Berger filed another charge against Haidak: harassment and “failure to comply” with the no-contact orders. It claimed that his behavior was a “direct and imminent threat” to the university community, justifying an immediate suspension.

Berger would soon leave UMass to join Fairfield University (below), where she remains assistant dean of students.

‘The suspension decision was not a slam dunk,’ and university knew it

Even after Haidak gave his side of the story in writing on July 8, including Gibney’s active communication with him, UMass left him suspended. It didn’t even have procedures in place to schedule a hearing over the summer, since it uses student adjudicators, according to the 1st Circuit.

He withdrew from the university Sept. 1 – about a month before the earliest hearing could happen – citing the indefinite delay.

Haidak and Gibney “maintained their off-and-on relationship” after he left, and even had consensual sex – a fact only revealed when she tried to extend a temporary restraining order against him in a state court. She also admitted to having “struck and bitten Haidak” in their relationship, and the court refused to grant an extension.

By jumping the gun on the supposed threat from Haidak and refusing to probe the nature of the couple’s communications, “the university violated Haidak’s due process rights,” the panel said flatly.

MORE: Conservative Christian blocked from UMass-Amherst student government

Haidak’s decision to leave UMass was based on its faulty view – later contradicted by a hearing board – that he was a threat:

But, had university officials conducted a more substantial hearing before suspending Haidak, they would likely have discovered that they misunderstood the nature of the contact between him and Gibney. And as university counsel forthrightly conceded at oral argument, the record does not compel a finding that the university would have suspended Haidak had it known that the communications were welcomed and reciprocated by Gibney. … In sum, the suspension decision was not a slam dunk, and there was ample time to provide prior notice and a meaningful opportunity to be heard.

UMass failed to even claim that an “exigency” justified the immediate suspension before notice and a hearing, the panel ruled, citing the 13-day wait by Berger to issue the suspension. It offered no evidence that it could not “provide some type of process” to hear Haidak’s response over that fortnight.

Because Haidak had disputed Gibney’s account of unwanted communications early on, UMass knew that the “key issue” behind his suspension was not settled – and yet “could be verified.”

Even though Haidak was ultimately expelled after a “fair expulsion hearing,” the court concluded, the indefinite suspension is enough to justify “nominal damages” for Haidak. That matter will now return to the trial court.

Perhaps the critical passage If no direct x-exam, school "assumes for itself the respons'y to conduct reasonably adequate questioning. A school cannot both tell the student to forgo direct inquiry and then fail to reasonably probe the testimony tendered against that student." pic.twitter.com/jnSR8oerQe

— KC Johnson (@kcjohnson9) August 6, 2019

Administrator censored questions, but hearing board made up for that

The 1st Circuit had a much different view of Haidak’s actual hearing, once it was finally scheduled for November.

Because of the five-month suspension, Haidak hadn’t been allowed to directly question Gibney under UMass policy at the time.

A new policy took effect with the 2013-2014 school year that removed the right of accused students to “question other students directly,” meaning Haidak had to submit questions to the hearing board to ask Gibney. Two years earlier, the Obama administration had discouraged cross-examination in a “Dear Colleague” letter.

In his contemporary coverage of 1st Circuit oral argument in January, Brooklyn College Prof. KC Johnson noted that the elimination of direct cross-examination meant Haidak couldn’t question Gibney on his claim that she initiated the violence in Barcelona.

Johnson, who closely tracks Title IX litigation, also noted that the investigator culled most of his questions before presenting them to the board.

The panel only received 16 of Haidak’s 36 questions, thanks to Assistant Dean of Students Patricia Cardoso-Erase, according to the 1st Circuit. (She got promoted after this.) Cardoso-Erase also refused to let him present evidence of Gibney’s violence toward him and her undermined credibility from the state court hearing.

The appeals panel found “nothing unfair” about the exclusion of evidence – “to keep [the board’s] focus on the events at issue” – and largely upheld its use of an “inquisitorial” adjudication.

MORE: UMass-Amherst requires two ‘social justice’ classes for diploma

Though “considerable anecdotal evidence suggests” that cross-examination by an “experienced trial lawyer” is an effective way to reach the truth, many courts have ruled that students don’t have the right to a lawyer.

That would mean Haidak believes he has a right to cross-examine Gibney, according to the 1st Circuit. It won’t go that far, and instead sides with a friend-of-the-court brief filed by FIRE, which argued that due process requires “some opportunity for real-time cross examination, even if only through a hearing panel.”

Kayatta’s opinion explicitly refused to join the 6th Circuit’s requirements for due process, namely the right to cross-examine directly or through a representative. That would be too close to turning student disciplinary proceedings into “common law trials.”

Whether UMass fulfilled its obligation to “reasonably adequate questioning” under the inquisitorial model is “a close question,” the panel said, but ultimately was satisfied by the board’s actual questions to Gibney.

While it criticized Cardoso-Erase for preventing the board from seeing more than half of Haidak’s questions, the judges said the board “managed to avoid the pitfalls created by the university”:

The Board questioned Gibney at length on the matters central to the charges. It probed for detail and required her to clarify ambiguities in her responses. … By alternating between questioning Haidak and Gibney, ultimately examining each student three times, it engaged in an iterative process in which its questioning of Gibney was informed in real time by Haidak’s testimony as the proceedings unfolded.

As a result, the board “exposed weaknesses in the charges against Haidak,” absolving him of multiple charges, including the most serious one, the judges wrote: It conducted a hearing “reasonably calculated to get to the truth.”

MORE: UMass-Amherst restricts free speech to an hour at lunch

IMAGE: Happy Stock Photo/Shutterstock

Like The College Fix on Facebook / Follow us on Twitter