In Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), the Sixth Circuit held that due process required that a student accused of sexual misconduct must be given a hearing before a college or university imposes sanctions as serious as expulsion or suspension and, when the institution’s determination depends upon witness credibility, the hearing must include an opportunity for cross examination. Doe involved a disciplinary proceeding at the University of Michigan, a public institution bound by the Due Process Clause of the United States Constitution. Here is a link to the blog I posted last year about the case. http://www.agtlawyers.com/campus-disciplinary-procedures-cases-involving-sexual-misconduct-allegations-a-changing-landscape/
Private colleges and universities are not bound by the Due Process Clause. Many campus disciplinary processes allow for the imposition of discipline without full formal hearings and/or an opportunity to cross examine adverse witnesses. Although Doe v. Baum is not binding precedent outside of the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee), it has been cited with approval by several courts across the United States in cases involving public institutions. In June 2019, the United States District Court for the Western District of Tennessee granted a preliminary injunction in a case brought by a Rhodes College student accused of sexual misconduct. See Doe v. Rhodes College, Case No. 2:19-cv-2336 (W.D. Tenn.). Most of the documents in the case are filed under seal, but media reports state that Judge John T. Fowlkes, Jr., suggested in his preliminary injunction ruling that due process may be implied in Title IX of the Education Amendments Act of 1972, which applies to both public and private institutions.
On August 6, 2019, the parties to Doe v. Rhodes College, stipulated to dismissal of the case, which signals that they reached some form of settlement. Thus, Judge Fowlkes’ preliminary injunction will not be subject to further review. But, his suggestion is a significant development in this field. If due process is implied in Title IX, students at private colleges and universities will be able to rely upon Doe v. Baum to argue that they are entitled to the same rights that are guaranteed to public college and university students.
If you have questions about campus discipline, Astrachan Gunst Thomas, P.C. can help. Contact Mark Stichel at (410-783-3547)