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College Discipline in Sexual Assault Case Violated Due Process

By George Khoury, Esq. on October 04, 2017 | Last updated on March 21, 2019

The case of John Doe v. University of Cincinnati is not without some confused emotions. While it may sound like a typical case of a college campus 'he said she said' sexual assault dispute, the courts have found the disciplinary process to be unconstitutional.

The Sixth Circuit Court of Appeals held that the college's disciplinary process violated the due process rights of the student accused of sexual assault because he was denied the right to confront his accuser. However, unlike a criminal trial where a due process violation like this could be grounds for reversal, the appellate court explained that when it comes to school discipline, the law is a little bit different. Nevertheless, the appellate court upheld the granting of the preliminary injunction stopping the school from suspending the accused student.

What Happened Here?

The facts of the case are unremarkable. Two college students met on the hookup app Tinder. According to the male student, the two consensually had sex. According to the female student, after meeting in person, she was sexually assaulted. Rather than reporting the assault immediately, the female student waited one month. Then the school's investigator delayed starting the investigation.

Several months elapsed before the accused was notified, and formal disciplinary charges brought. During the disciplinary hearing process, the accused was denied the right to ask questions of his accuser, despite the university having a process for doing so without letting the accused interact with the accuser. Additionally, the accuser did not show up to the hearing, but rather submitted a statement that was considered by the disciplinary panel.

What Due Process?

The appellate court was quick to point out that school disciplinary hearings are not required to cut constitutional muster, particularly for academic matters. However, when the disciplinary process involves a misconduct issue and credibility determination, it is the fact finder that must evaluate an accuser's credibility. Without the accuser showing up to testify, and facing questioning, a finder of fact cannot adequately make a credibility determination.

The appellate court found the denial of Doe to confront his accuser, even with the disciplinary panel reviewing and asking Doe's question themselves to reduce the impact on the alleged victim, such a clear violation that the high standard for a preliminary injunction was met.

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