JOHN DOE, Plaintiff-Appellant, v. MICHIGAN STATE UNIVERSITY; ROBERT KENT, RICK SCHAFER, and ARON SOUSA, M.D., in their individual and official capacities, jointly and severally, Defendants-Appellees.
No. 20-1043
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 25, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 21a0049p.06. Argued: October 23, 2020. Decided and Filed: February 25, 2021. Before: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Eric J. Rosenberg, ROSENBERG & BALL CO. LPA, Granville, Ohio, for Appellant. Scott R. Eldridge, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C., Lansing, Michigan, for Appellees. ON BRIEF: Eric J. Rosenberg, ROSENBERG & BALL CO. LPA, Granville, Ohio, for Appellant. Scott R. Eldridge, Kamil Robakiewicz, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C., Lansing, Michigan, Brian M. Schwartz, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellees.
GIBBONS, J., delivered the opinion of the court in which CLAY, J., joined, and NALBANDIAN, J., joined in the disposition. NALBANDIAN, J. (pp. 18–23), delivered a separate concurring opinion.
JULIA SMITH GIBBONS, Circuit Judge. This case arises from the investigation and eventual expulsion of John Doe from the Michigan State University College of Human Medicine (“CHM“) for allegedly sexually assaulting two women, Roe 1 and Roe 2, on the night of the school‘s formal dance.
The two women reported to the university that Doe had sexually assaulted them, after which the university began an investigation led by an outside consultant. The consultant determined that the evidence supported a finding that Doe had indeed sexually assaulted the women. Then, the CHM convened a panel, which affirmed the findings without an in person hearing. While this process was ongoing, we released Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018), holding that universities must offer an in person hearing with cross-examination in cases where the factfinder‘s determination depends on witness credibility. Accordingly, the CHM gave Doe an in person hearing, conducted over the course of three days before a Resolution Officer, who was an Administrative Law Judge selected by the university to oversee the hearing. At this hearing, Doe was permitted to testify and, through his attorney, to cross-examine Roe 1 and Roe 2. The Resolution Officer did not require Roe 1 to answer every question that Doe‘s attorney posed to her. Both Doe and his attorney were present throughout the entire hearing.
After considering the credibility of the witnesses including Roe 1, Roe 2, and Doe, the Resolution Officer again found that the evidence supported a finding that Doe had sexually assaulted the women. After these proceedings, and several years after the alleged sexual assaults, the CHM expelled John Doe.
Doe brought this suit against the university and several individual defendants, alleging that the university‘s proceedings violated the Due Process Clause, the Equal Protection Clause, and Title IX. The defendants moved to dismiss under
On appeal, Doe argues that (1) the district court erred in denying his motion to amend his complaint a second time and (2) the district court erred in dismissing his due process claim. Doe did not appeal the district court‘s decision as to his Title IX and Equal Protection claims. Because Doe received ample due process throughout the course of his three-day hearing, we affirm.
I.
A.
In April 2016, John Doe, Jane Roe 1, Jane Roe 2, and K.B. were first-year medical students at the CHM. Roe 1 was casually dating K.B., and Roe 2 was married to another man, J.M. On April 23, the four students attended a dance known as the Med Ball together. The group consumed alcohol before and during the Med Ball.
The parties dispute the events that took place that night. In reviewing a
At the Med Ball Roe 1 and Doe danced together, at times “sexually grinding on each other.” DE32, First Am. Compl., Page ID 713. Also at the dance, Roe 2 got into a fight with her husband J.M., and he left the venue, asking Roe 2 for a divorce. After this fight, Roe 1 looked for Roe 2, hoping to comfort her, but found her kissing K.B. (whom Roe 1 had been casually dating). Roe 1 returned inside and sat on a stairway that was at least somewhat secluded from the rest of the venue. Doe found Roe 1 on the staircase and sat down next to her. There, Roe 1 told Doe that she had seen Roe 2 and K.B. kissing.
On the staircase, Doe kissed Roe 1, who “responded by kissing [him] back, using her tongue.” Id. at Page ID 714. After kissing for some time, they moved to the second floor of the
Shortly after this encounter, the group moved to a bar in Grand Rapids. At this bar, Doe and Jane Roe 2 moved upstairs to the dance floor, where they danced and kissed.
Eventually, the group returned to K.B.‘s house, where Roe 2 and K.B. had sex in K.B.‘s kitchen. Roe 1 was sleeping in K.B.‘s bed. Doe joined Roe 1 on the bed, but was unable to sleep, so he moved to the sectional couch where Roe 2 lay awake. Roe 2 began grinding her buttocks against Doe, and they kissed. After kissing and touching for some time, Doe pulled Roe 2‘s dress up and touched her buttocks. Roe 2 told Doe either “I‘m tired” or “no.” Id. at Page ID 718. Doe stopped, moved to another part of the couch, and the two went to sleep.
B.
The encounters between Doe and Roe 1 and 2 took place in April 2016. In February 2018 the two women filed sexual assault claims with the university‘s Office of Institutional Equity (“OIE“) against Doe for his conduct during the night in question. A complaint of this kind is investigated by the university to determine whether the conduct violated the university‘s Relationship Violence and Sexual Misconduct Policy (“RVSMP“). The university hired the external consultant, Kroll Associates, Inc., to investigate Roe 1 and Roe 2‘s allegations. Kroll conducted several interviews of Doe, Roe 1, Roe 2, and witnesses for Roe 1 and Roe 2. After Kroll‘s initial investigation, they sent Doe a letter informing him that the CHM would be moving forward with a formal investigation into whether he violated the RVSMP.
Kroll‘s investigation took place over the course of a year, and in February 2019 Kroll issued its Final Investigative Report, concluding that a preponderance of the evidence supported a finding that Doe had violated the RVSMP with respect to both Roe 1 and Roe 2. The CHM issued an interim suspension of John Doe on February 12, 2019. The CHM then held a three-panelist hearing with Doe on February 14, 2019, to determine whether the suspension would
On February 18 Doe submitted his mitigation statement to the Dean of Students’ Office regarding the sanctions against him. On February 26, the Dean of Students’ Office notified Doe that it would be recommending dismissal.
During these initial proceedings, the CHM was governed by a prior RVSMP. The RVSMP was updated in February 2019 in accordance with this court‘s decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). Baum, decided in September 2018, held that when the determination of a university disciplinary proceeding depends on credibility, the accused has a constitutional due process right to “some form of cross-examination” of the claimant at an in person hearing. Baum, 903 F.3d at 581. This was a change from the prior RVSMP, which did not require an in person hearing with the opportunity for cross-examination.
On March 8, Doe appealed the CHM‘s findings and sanctions through the university‘s internal procedure. That same day, the university notified Doe that his appeal was placed “on hold” while his case was reviewed to determine whether a hearing should have been offered pursuant to Baum. On March 13, the OIE confirmed that Doe was due a hearing, and gave him a 7-day window to request one. Doe did so on March 20 and also submitted a request that the university lift his interim suspension, which it denied.
On March 25, Doe filed this case in the Western District of Michigan against Michigan State University, Robert Kent (Interim Associate Vice President of the Office for Civil Rights and Title IX Education and Compliance), Rick Shafer (Associate Director of Student Conduct and Conflict Resolution), and Aron Sousa (Senior Associate Dean for the College of Human Medicine). The complaint alleged a Title IX violation and violations of his due process and equal protection rights, brought under
Doe moved for a temporary restraining order and preliminary injunction to reinstate him as a student. The court denied his motion.
RO Eyster conducted a hearing from May 13 through May 15, which consisted of in person testimony and cross-examination. During the three-day hearing, RO Eyster oversaw Doe‘s attorney‘s cross-examination of Roe 1 and Roe 2. RO Eyster allowed Roe 1 to refuse to answer an unspecified number of questions on cross-examination.
On May 22, RO Eyster issued his decision, finding by a preponderance of the evidence that John Doe had violated the RVSMP with respect to his conduct towards both Jane Roe 1 and Jane Roe 2. On June 11, the Dean of Students’ Office again notified Doe that it was recommending dismissal, and Doe again appealed.
In this legal action, Doe amended his complaint to include facts and allegations regarding the Baum hearing, including the fact that RO Eyster permitted Roe 1 to refuse to answer an unspecified number of questions, on July 23. Doe was officially dismissed from Michigan State University on July 19, 2019.
On August 22, 2019, the defendants moved to dismiss the first amended complaint under
The district court granted the defendants’ motion to dismiss on December 10, 2019 and Doe timely appealed the denial of his motion to amend and the grant of defendants’ motion to dismiss.
“This court reviews a denial of leave to amend a pleading for abuse of discretion, unless the district court denied leave based ‘on the legal conclusion that an amended complaint could not withstand a motion to dismiss.‘” Boulton v. Swanson, 795 F.3d 526, 537 (6th Cir. 2015) (quoting Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002)). We therefore review for abuse of discretion the district court‘s denial of Doe‘s motion for leave to file a second amended complaint on the grounds that the motion was untimely. On the other hand, this court reviews de novo the denial on grounds that the second amended complaint was futile, as this constituted a holding that the second amended complaint “would not withstand a motion to dismiss ... for failure to state a claim.” Kreipke v. Wayne State Univ., 807 F.3d 768, 782 (6th Cir. 2015); Miller v. Champion Enters. Inc., 346 F.3d 660, 671 (6th Cir. 2003).
We review “de novo a district court‘s dismissal of a complaint for failure to state a claim.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). In reviewing Doe‘s claims, the court must accept “all well-pleaded allegations in the complaint as true,” id., and “consider[] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief,” id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (second alteration in original)). “Dismissal of a complaint for the failure to state a claim on which relief may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
III.
Doe brings two arguments on appeal; first that the district court erred in denying his motion to file a second amended complaint, and second that the district court erred in dismissing his due process claim.
A.
We first address Doe‘s motion to file a second amended complaint. Doe first amended his complaint upon completion of his Baum hearing, adding facts and allegations arising from
1.
As a preliminary matter, we agree with the appellees that Doe waived any appeal of the district court‘s decision regarding timeliness by failing to raise the issue in his initial brief. Generally, an “appellant abandons all issues not raised and argued in its initial brief on appeal.” Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 540 (6th Cir. 2014) (quoting United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006)). “Furthermore, ‘it is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.‘” Johnson, 440 F.3d at 846 (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) (citation and quotation marks omitted)).
The district court held that because Doe‘s motion failed to argue that the additional facts were newly discovered or provide an explanation as to why the delay was warranted, there was no excuse for the failure to “include [the] facts in his first amended complaint.” DE45, Order Grant. Mot. to Dismiss, Page ID 1188. On appeal, Doe does not address the court‘s holding that the amendments were untimely. He states one standard of review, de novo, for dismissal on the grounds that the SAC would not survive a motion to dismiss. Nowhere does Doe‘s brief contest the district court‘s finding that the motion was untimely because the facts were “at least in his possession at the time of filing his first amended complaint, if not in his possession on the night of the incident that began this case.” DE45, Order Grant. Mot. to Dismiss, Page ID 1188.
It is not until his reply brief that Doe argues that he did address the court‘s untimeliness holding, stating that his brief reference to the “spirit of
2.
Regardless of his waiver, we would affirm the district court on the merits of its decision. We review the denial of Doe‘s motion to amend his complaint for untimeliness under abuse of discretion. See Boulton, 795 F.3d at 537. Abuse of discretion is a highly deferential standard, and the district court‘s findings “will be disturbed only if [it] relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass‘n, 110 F.3d 318, 322 (6th Cir. 1997).
3.
This court reviews the denial of the motion to amend for futility de novo. Boulton, 795 F.3d at 537. As noted above, leave to amend should be given “freely” and “when justice so requires.”
In deciding a motion to dismiss for failure to state a claim, the court must take all well-pleaded allegations in the plaintiff‘s complaint as true. Iqbal, 556 U.S. at 678–79. Doe‘s first amended complaint includes the following allegations:
The Resolution Officer permitted Jane Roe 1 to refuse to answer questions on cross-examination, without penalty or negative inference as a result.
The Resolution Officer denied John Doe the opportunity to ask relevant questions on cross-examination through his counsel.
DE32, First Am. Compl., Page ID 736. Doe‘s due process claim rested in relevant part on the
Doe‘s SAC also added the allegation that he was not allowed to record the Baum hearing, and that the University was in “sole possession” of the recording of the hearing. DE39, Second Am. Compl., Page ID 1025. The SAC does not allege either Doe or his lawyer at any point requested a transcript of the hearing, or that their request was denied. At oral argument, Doe‘s lawyer repeatedly asserted that the university was withholding the Baum transcript in violation of his client‘s due process rights. This was a mischaracterization of the facts, which are that both Doe and his attorney were present for the entire hearing and both failed to request a transcript from the university at any point. Further, while the Constitution does require that “the student be provided the evidence against him,” there is no indication that this evidence includes the transcript of a Baum hearing. Doe v. Miami Univ., 882 F.3d 579, 603 (6th Cir. 2018). Far from withholding the evidence against Doe, the university provided him with the case file, including
Because the SAC was both untimely and futile, we affirm the district court.
B.
Second, Doe argues that the district court erred in granting defendants’ motion to dismiss because his hearing violated his due process rights, as laid out in Baum and Doe v. University of Cincinnati, 872 F.3d 393 (6th Cir. 2017). Because Doe received extensive due process throughout his hearing, we disagree and affirm the district court.
1.
Mathews v. Eldridge, 424 U.S. 319 (1976) provides the test for courts to determine what procedures are required when a plaintiff has interests at stake.
Under Mathews, the level of process the
Fourteenth Amendment requires is determined by balancing three factors: (1) the nature of the private interest affected by the deprivation; (2) the risk of an erroneous deprivation in the current procedures used, and the probable value, if any, of additional or alternative procedures; and (3) the governmental interest involved, including the burden that additional procedures would entail.
Doe v. Cummins, 662 F. App‘x 437, 446 (6th Cir. 2016) (citing Mathews, 424 U.S. at 335). This court has applied Mathews in the context of campus sexual assault proceedings, laying out the following framework for what is required.
In 2016, this court decided Cummins, 662 F. App‘x at 437. The plaintiffs, Doe 1 and Doe 2, were accused of sexually assaulting fellow students at the University of Cincinnati. Id. at 438. One was suspended, while the other was put on disciplinary probation following a university proceeding to determine whether, by a preponderance of the evidence, the two were “responsible” for violating the university‘s Code of Conduct. Id. at 438; id. at 440–42. The proceedings culminated in two separate hearings, at which Doe 1 and Doe 2 were permitted to submit written questions to the panel overseeing the hearings, who then posed the questions to the claimants. Id. at 441. The panel refused to ask “a number of written questions that Doe 1 submitted.” Id. The two students brought a claim in federal district court, alleging in part that
The next year, we decided Doe v. University of Cincinnati, which built on Cummins. 872 F.3d at 393. In University of Cincinnati, plaintiff John Doe was accused of sexually assaulting a fellow student and was suspended for one year from school following a hearing where the claimant was not present, depriving him of any right to cross-examination. Univ. of Cincinnati, 872 F.3d at 398. Again applying Mathews, we weighed Doe‘s interest (the impact that a finding of responsibility for a sexual offense would have on his life) with the burdens imposed by additional procedural safeguards and the risk of erroneous deprivation of his interest in the absence of those additional safeguards. Id. at 400. We held that where the deprivation is severe, such as suspension from the school and the accompanying harm to Doe‘s reputation, and the credibility of the accuser is at issue, a denial of cross-examination is a denial of due process. Id. at 402. In our decision, we stressed that cross-examination is a necessary tool for the trier of fact because it “takes aim at credibility like no other procedural device.” Id. at 401.
In University of Cincinnati, we also acknowledged the potential harm that unfettered cross-examination could pose to victims of sexual assault. Id. at 403 (“Strengthening those procedures is not without consequence for victims. ‘Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating’ the same hostile environment Title IX charges universities with eliminating.” (quoting Doe v. Regents of the Univ. of Cal., 210 Cal. Rptr. 3d 479, 505 (2016))). We therefore reaffirmed that the cross-examination required by due process was “circumscribed.” Id.
The issue of cross-examination appeared before us again in 2018, when we decided Doe v. Baum. 903 F.3d at 575. In Baum, plaintiff John Doe was accused of sexually assaulting a fellow undergraduate student, Jane Roe, at the University of Michigan. Id. at 578–79. The
We agreed with Doe, holding that when a university‘s decision rests on a credibility determination, it must “facilitate some form of cross-examination in order to satisfy due process.” Id. at 581. In doing so, we considered the significance of Doe‘s interests, the minimal burden on the university, and the university‘s interest in protecting victims. Id. at 582–83. Doe‘s interests were significant. See id. at 582 (“Being labeled a sex offender by a university has both an immediate and lasting impact on a student‘s life. The student may be forced to withdraw from his classes and move out of his 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.” (internal citations omitted)). The burden on the university was minimal because “the administration already has all the resources it needs to facilitate cross-examination and knows how to oversee the process.” Id. Finally, the university had a legitimate interest in “avoiding procedures that may subject an alleged victim to further harm or harassment.” Id. at 583. We reasoned that these interests could be accommodated, but did not justify denying cross-examination altogether. Id.
In Baum, we did not detail exactly what form of cross-examination is required, beyond its being in person and in front of the factfinder. Id. at 583. We did, however, give extensive justifications that can help give definition to the constitutional minimum. First, cross-examination allows the defendant (in this case, Doe) to “take[] aim at credibility” and “probe the witness‘s story to test her memory, intelligence, or potential ulterior motives.” Id. at 582 (first quoting Doe v. Univ. of Cincinnati, 872 F.3d at 401). Second, it allows the factfinder to “observe the witness‘s demeanor under . . . questioning.” Id. It follows, then, that the form of cross-examination required must allow for the defendant to probe the claimant‘s credibility and for the factfinder to observe the witness‘s demeanor under questioning.
Throughout his complaint, Doe references the impact that the questions Roe 1 did not answer would have on “[r]easonable jurors.” See, e.g., R.22, Appellant‘s Br., 22. Despite Doe‘s characterization, the issue here is not whether answers to the questions to which Roe 1 did not respond would have impacted a reasonable juror‘s decision. Univ. of Cincinnati, 872 F.3d at 400 (“Review under Mathews asks only whether John Doe had an opportunity to respond, explain, and defend, not whether a jury could constitutionally convict him using the same procedures.” (internal quotations omitted)). The issue is whether the University‘s procedures comported with the due process clause.3 Id. To determine this, we examine whether the cross-examination afforded to Doe achieved the twin aims of Baum, and whether Mathews balancing supports a finding that the university was required to force Roe 1 to answer every question posed. We hold that the due process afforded to Doe throughout his three-day hearing, including extensive in person cross-examination of the claimants by his attorney, was more than sufficient to satisfy Baum, and that Mathews does not call for uncircumscribed cross-examination.
Doe was given an in person hearing that took place over the course of three days. Roe 1 and Roe 2 participated in the hearing, and both sides presented evidence and testimony. Doe had the opportunity to cross-examine both women through his counsel. In his complaint,4 Doe alleges that
The Resolution Officer permitted Jane Roe 1 to refuse to answer questions on cross-examination, without penalty or negative inference as a result.
The Resolution Officer denied John Doe the opportunity to ask relevant questions on cross-examination through his counsel.
To follow Doe‘s reasoning would be an expansion of Baum‘s mandate for a circumscribed form of cross-examination and would open up witnesses to potential harassment at the hands of their accusers or their accusers’ attorneys. Doe‘s complaint does not plausibly suggest that the CHM‘s procedure fell short of the rule laid out in Baum.
In addition, Doe‘s claim fails the Mathews test. First, we examine Doe‘s interests. It is undisputed that Doe has significant interests at stake. They include the completion of his degree, protecting his reputation and personal relationships, and potential harm to future education and employment. DE32, First Am. Compl., Page ID 761–62; see also Baum, 903 F.3d at 582. Second, we look at the risk of an erroneous deprivation of the current procedures, and the probative value of additional procedures. Mathews, 424 U.S. at 335. As discussed above, the complainants in Doe‘s hearing were cross-examined by Doe‘s attorney in front of a neutral factfinder over the course of a three-day hearing where Doe was also permitted to present evidence. Forcing the claimants to answer two additional categories of questions over the entire course of their cross-examination does not significantly add to the fact-finder‘s ability to test their credibility. Finally, the court must consider the governmental interests involved. Mathews,
Because the lengthy hearing, complete with in person cross-examination, gave the RO ample opportunity to judge credibility and view the witness‘s demeanor, and any probative value of forcing them to answer every question is outweighed by the university‘s interests, we affirm the district court‘s grant of the defendants’ motion to dismiss.
IV.
For these reasons, we affirm both the district court‘s denial of Doe‘s motion to amend his complaint a second time and its grant of the defendants’ motion to dismiss for failure to state a claim.
NALBANDIAN, Circuit Judge, concurring. I concur with the majority‘s disposition of this case. But I write separately to emphasize a few points of disagreement.
First, although I agree with the majority‘s resolution, I think this is a much closer case than the majority implies. We have, of course, decided a series of cases dealing with the procedural protections afforded to students accused of misconduct. And based on what we‘ve said, several facts here suggest that Doe‘s procedural protections must be at their apex. For one thing, Doe was accused of criminal wrongdoing rather than mere academic underperformance. “And where the deprivation is based on disciplinary misconduct, rather than academic performance, ‘we conduct a more searching inquiry.‘” Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017) (quoting Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 634 (6th Cir. 2005)).
For another, the accusation wasn‘t just of generic criminal wrongdoing. Doe was accused of, and found by a preponderance of the evidence to have committed, sexual assault and other crimes. The nature of this particular accusation heightens Doe‘s private interest and thus the procedural protections to which due process entitles him. Indeed, “[t]ime and again, this circuit has reiterated that students have a substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct.” Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018). That‘s because “[b]eing labeled a sex offender by a university has both an immediate and lasting impact on a student‘s life.” Id. Such an accusation can have “a substantial lasting impact on appellants’ personal lives, educational and employment opportunities, and reputations in the community.” Doe v. Cummins, 662 F. App‘x 437, 446 (6th Cir. 2016). So it‘s not just that Roe I and Roe II accused Doe of a crime. They accused him of serious sex crimes. This entitled Doe to an extra layer of procedural protection. See Univ. of Cincinnati, 872 F.3d at 400.
And, not surprisingly, Doe faced the most serious sanction a school can impose—expulsion. And “[l]onger suspensions or expulsions . . . may require more formal procedures.” Goss v. Lopez, 419 U.S. 565, 584 (1975). After all, “[t]he more serious the deprivation, the more
In short, Doe was accused of serious sexual misconduct rising to the level of a felony, and the university‘s resolution of the case turned on its assessment of witness credibility. It‘s hard to imagine a combination of facts entitling an accused to more robust process than this one. And in circumstances like these, where due process must be at its strongest, we should take care not to let an accuser‘s reluctance negate an accused student‘s right to cross-examination.
That‘s not to say that‘s what happened here. But recall why cross-examination is so important in cases like this. We‘ve called cross-examination the greatest legal engine ever invented for the discovery of truth. Baum, 903 F.3d at 581. It “allow[s] the accused to identify inconsistencies in the other side‘s story, [and] also gives the fact-finder an opportunity to assess a witness‘s demeanor and determine who can be trusted.” Id. And even more than this, it enables the accused to “probe the witness‘s story to test her memory, intelligence, or potential ulterior motives.” Id. at 582.
The problem is that, at some level, an accuser in a credibility contest involving allegations of a sexual crime can defeat meaningful cross-examination by refusing to answer questions that go to the heart and substance of the allegation. An accused can‘t identify inconsistencies in an accuser‘s story or probe her memory of the events if the accuser simply refuses to answer questions. The factfinder will not be able to evaluate a witness‘s credibility as she discusses the incriminating event if she refuses in the first place to discuss that event.
Of course, we‘ve never said an accused must receive unfettered cross-examination. But we can‘t answer whether a university vindicates an accused student‘s cross-examination right simply by looking at the number of questions an accuser was allowed not to answer. See Doe v. Ohio St. Univ., 311 F. Supp. 3d 881, 889–93 (S.D. Ohio 2018). And that‘s where I part ways with the majority. See ante at 12–13. It may be the case that only a handful of questions or “categories” of questions can adequately test the veracity of the accuser‘s account. Perhaps there was only a single act of offending conduct, or the episode happened quickly. In that case, it‘s irrelevant if the accuser answers hundreds of questions on collateral matters. If the accuser‘s refusal to answer questions prevents the accused from probing her memory of the incriminating event or her consistency in recounting it, the cross-examination right is denied. See Baum, 903 F.3d at 582-83. It doesn‘t matter that the accuser only refused to answer a small fraction of the accused‘s questions.
So whether an accuser‘s refusal to answer questions gives rise to a due process violation depends in part on a combination of quantity and quality, on type and amount. The inquiry isn‘t categorical. It is, as a procedural due process question, fact intensive. And in university disciplinary proceedings, it‘s multidimensional. So it not only depends on the nature and number of questions the accuser refused to answer. It also depends on the nature of the accusation—what kind of conduct is alleged?—the nature of the proof—is it a credibility
All that said, I struggle to imagine a scenario where the constitutional floor is higher than it is here. But regardless, I believe that the University should prevail. Despite Doe‘s entitlement to robust procedure, the University afforded him enough process to satisfy the Constitution (at least as Doe has pled this case). It gave him a multi-day hearing where he presented evidence and cross-examined his accusers.
But more specifically, for the reasons given by the majority, I do not think that the record plainly establishes what questions Doe wanted to ask and whether he tried to ask them and was denied. Indeed, Doe‘s effort to amend his complaint to include the questions to which he apparently didn‘t receive a response is unsuccessful for a reason unrelated to its merits: it was untimely. And Doe‘s operative complaint says nothing about the form or content of the unanswered questions. It says only that “[t]he Resolution Officer permitted Jane Roe 1 to refuse to answer questions on cross-examination by John Doe‘s counsel, without penalty and without a negative inference as a result of her refusal to answer.” But this threadbare allegation by itself doesn‘t suffice when the University gave Doe a lengthy hearing with extensive cross-examination. As I noted above, even a small number of unanswered questions can sometimes
And that‘s also why the hearing transcript would be helpful. Citing Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), the majority correctly says a university must provide an accused student with the evidence against him. But it then says there‘s “no indication” this includes a hearing transcript. I‘m not so sure. And I don‘t think that follows from Miami University. In that case we said the Constitution requires “that the student be provided the evidence against him.” Id. at 603. And we said Doe alleged a cognizable due process claim because there was certain evidence the university used ”to adjudicate John‘s claim, and John was not provided this evidence.” Id. (emphasis added). So Miami University holds that the Constitution requires the university give to the accused the evidence it uses in adjudicating his claims.
It‘s unclear here if Michigan State relied on the Baum hearing transcript post-hoc to adjudicate Doe‘s claim. If it did, Doe likely has a due process entitlement to it. See id. But Doe never asked for the transcript from his hearing. So it doesn‘t look like Michigan State ever “refused to provide” it. Id. And the allegation about the missing transcript doesn‘t appear until Doe‘s second amended complaint, which isn‘t the operative complaint on appeal. Thus, Doe‘s missing transcript cannot carry him past Michigan State‘s motion to dismiss.
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Doe‘s case is a close one. But ultimately, on this record, Michigan State didn‘t violate his due process rights. That‘s not to say, however, that a university can never violate a student‘s due process rights by limiting—though not denying—cross-examination. And to be fair, I don‘t read the majority opinion as saying as much. Instead, I read it as saying that this particular combination of number and content of unanswered questions wasn‘t enough to make out a due process violation. Thus, nothing in the majority precludes such a violation just because the number of unanswered questions was small. The inquiry is fact intensive. And although Doe‘s