The Courts continue to grapple with the difficult question of fairness in university and college student discipline cases, especially when students are accused of serious misconduct (such as nonconsensual sexual conduct) and face expulsion or long-term suspension. On the one hand, all students and other members of an academic community are entitled to a safe campus environment. On the other, accusations of serious misconduct can badly damage a student’s reputation and result in the loss of educational and career opportunities. In short, the stakes are inevitably high.

Recent cases show an increased willingness of Courts to question university procedures, though Universities continue to win cases at a high rate. Also, little consensus has formed except, perhaps, around the need for cross-examination.

What’s the latest in this area that is so important for a university town like Tucson?

In July 2019, the California Superior Court held that California Institute of Technology (i.e., Cal Tech) denied a suspended graduate student of his due process rights, where it failed to provide any mechanism for cross examining students who had accused him of sexual misconduct, and the university investigators also acted as judges. I.e., the investigators investigated the accused, took statements from the victims and then credited those allegations and suspended the graduate student without providing him any means to question his accusers. This was improper, as, in the Court’s view, the graduate student had the right to a proceeding in which a neutral adjudicator decided on the credibility of the allegations following an opportunity for cross examination.

Nearby, in September 2019, a federal district court dismissed most claims brought by an expelled undergraduate student against the University of Colorado, Boulder. Notably, the Court rejected anti-male bias claims, in addition to due process claims, persuasively reasoning, among other things, that it is likely that sexual assault investigation systems are simply pro-victim, and most victims are women. Plaintiffs must come up with particularized evidence of markedly anti-male prejudice to overcome this inference. However, on the question of cross-examination in future cases, the Court emphasized that it had become essential in “he-said/she-said” cases. Or, as the Court put it, “the due process procedures to which a respondent is entitled in a university disciplinary proceeding (particularly one in which the outcome depends on the relative credibility of the witnesses) have become clearer,” and include some form of cross examination.

By contrast, Doe v. Purdue was an unusual across-the-board win for a student who was suspended based on a sexual misconduct allegation following an egregiously defective procedure. The suspension also resulted in the student’s expulsion from a ROTC program.

The Seventh Circuit refused to dismiss the student’s claim, where he alleged Purdue failed to disclose the evidence against him, including the investigator’s report. Also, two of the three adjudicatory panel members had not read the investigative report and the third lobbed only accusatory questions at him. No one on the panel had even met the accuser, although the case amounted to the classic “he-said/she-said,” and the accuser never submitted any statement of her own. Investigators also declined to interview the student’s witnesses, who would have testified about the accuser’s psychological condition and anger at the student for reporting her attempted suicide.

Also, the Court found the student’s allegations of anti-male bias sufficient, although many were found unpersuasive by other courts in unrelated cases. The Federal Court relied on the Obama administration’s get-tough-on-sexual-assault approach, Perdue’s resulting financial interest in being seen to crack down, and open Title IX investigations against Perdue itself. Though insufficient standing alone, these allegations lent support to the idea that Perdue’s unequal treatment of the student and accuser and their evidence showed gender bias. Also, the Court asserted that gender bias was a plausible claim in light of the disciplinary panel apparently assuming the student’s guilt without first reviewing the evidence. And the Court noted that relevant university department posted articles, such as one entitled “Alcohol isn’t the cause of campus sexual assault. Men are” with approval.

It is not hard to see, from these cases, that many courts would agree with the Seventh Circuit’s objections to Perdue’s process, as it falls far short of the cross-examination which Courts now expect in serious student discipline cases. However, courts may still fundamentally disagree about what evidence is needed to show gender bias in such proceedings.