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Judge bans university from revoking accused student’s scholarship: didn’t get to cross-examiner accuser

‘He is the youngest of 18 children’

“Only in rare instances is the issuance of this type of injunction proper … In its discretion, based on the totality of the circumstances of this case, the Court finds this is one of those rare instances.”

A federal judge took the unusual step of banning a university from suspending a student accused of sexual assault, based on the fact that he’d lose his athletic scholarship – and ability to pay for college – in the process.

By preventing “John Doe” from cross-examining his accuser at a “live proceeding,” the University of Southern Mississippi likely violated Doe’s procedural due process rights, U.S. District Judge Keith Starrett wrote in a memorandum opinion and order.

The allegations only go back to May, when “Jane Roe” told university police she was sexually assaulted two years earlier, “sometime” in February. A sexual-violence clinic associated with the university recommended she file a Title IX complaint.

Two months later, the Sexual Misconduct Investigative Team held a two-day “formal investigative hearing” – Judge Starrett uses scare quotes here – to separately interview Roe, Doe and six witnesses.

Not only was Doe not allowed to be present during anyone else’s interview, but he wasn’t allowed to submit questions for others. He was only allowed to see and comment on a “summary” of the interviews.

MORE: 6th Circuit requires cross-examination, even if lawyers do it

The ruling doesn’t exactly specify this, but it suggests that Doe was allowed to testify at an appeals hearing in early September. It was there that Doe explained his non-response to the “summary” of interviews, saying “he thought the panel [team] would see the inconsistencies, he told the truth, and he gave them all he had.”

Doe was taking his final two classes before graduation when Roe accused him, and he fears that his credits won’t transfer to another school.

His background makes clear he comes from a humble family. Doe is the youngest of 18 children “from the same mother” and can’t graduate if he loses his athletic scholarship, which is paying for college, Starrett said.

It will also sink his hope of playing in the NFL in the spring. (A footnote indicates Doe was tutored by the graduate assistant who took notes for the others’ interviews.)

‘Credibility is at issue and the consequences are grave’

Starrett took the unusual step of predicting how the 5th U.S. Circuit Court of Appeals, whose decisions are binding on him, would rule in this case.

The 6th Circuit’s recent ruling that public universities must allow cross-examination in Title IX cases – even if it means letting lawyers do it – “does an excellent job of explaining the unique aspects of this type of case where credibility is at issue and the consequences are grave if a party is found ‘responsible,'” he said.

Starrett’s circuit is likely to join the 6th in requiring cross-examination once it receives a case with the “right set of circumstances.” That didn’t happen in the campus sexual-assault case known as Plummer, where the 5th Circuit said due process wasn’t violated when “graphic videos
depicting the incidents” – not credibility – were the basis of the findings.

“Thus, while the Fifth Circuit has not held that cross examination is required, it has certainly never held that it is strictly prohibited,” Starrett said: “This Court finds that this is a case where cross examination is warranted because such a procedural safeguard would have lessened the risk of an erroneous deprivation.”

MORE: UMich claims due process hurts poor students

Starrett mentioned the dissent in Plummer but did not say whether he agreed with it, as did another federal judge in Mississippi. The dissent said hearings on sexual misconduct require a more “burdensome standard of review” because they are “quasi criminal,” with “long-lasting” effects for accused students, and should use a higher evidence standard.

He swatted down the case law cited by Southern Miss: short suspensions for harassment and “disruptive and disobedient conduct, which is a far cry from a case involving a sexual assault and significant consequences where credibility is key.”

Panelists’ notes are missing what ‘summary’ claims is a fact

The judge said “contradictions abound” from the team’s interview notes and testimony by Edward Sayre, director of the School of Social Science and Global Studies (whose role isn’t specified).

“More than one witness questioned” the truthfulness of the accuser, and the police officer who took her initial report, “the only highly trained investigator, flatly said he did not find her credible,” Starrett wrote: “She had more than one reported incident involving the University police.”

The team also “failed to flesh out inconsistencies in her story when she was questioned,” preferring her testimony to that of Doe, who had “never been in trouble” and whose female witness said the allegation was “out of character for him.”

While the team dinged Doe’s credibility by finding he knew about the allegation in 2016, “[t]here are three sets of what appear to be contemporaneous notes by the panel [team] members and not one notes that [redacted] told Plaintiff about the assault in October 2016,” Starrett wrote: “Only a summary in the notes provides for such a fact.”

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Here, redactions make it difficult to judge why Starrett finds the notes problematic. Two redacted witnesses discussing Roe are both identified as “Ms.”:

It appears no one followed up to clarify, or at least there are no notes in that regard. Ms. [redacted] never stated that Jane Roe told her about the assault, as Jane Roe claimed. Yet, the panel concluded that Ms. [redacted] told Plaintiff about the assault during a car ride in Fall 2016.

(The person who posted the order, Brooklyn College Prof. KC Johnson, told The College Fix that all files in the case between Doe’s suit and the order have been sealed. Starrett’s order, which is natively redacted, is dated Sept. 13 but was posted in the online court system Wednesday.)

No opportunity to ‘assess the person’s demeanor’ in a written rebuttal

The judge uses this confusion to explain why the university was obligated to provide live cross-examination, for the sake of both fairness to Doe and the truth.

Giving Doe a chance to “make changes, additions, or corrections” to summaries is just “more he said/she said,” Starrett wrote: Doe “could not know whether the summary was correct because he never heard the testimony in the first place.”

A written rebuttal does not provide “the opportunity to assess the person’s demeanor when asked certain questions and flesh out inconsistencies in a search for the truth,” the judge continued, citing the uncertainty around the team’s notes and their relevance to finding Doe not credible.

“These are but a few examples of the live testimony that could have been addressed and
cleared up at the time, but these in particular went directly to the panel’s assessment of credibility
and could have affected the outcome of this case,” Starrett said.

Doe faces a “significant” risk of wrongful harm to his reputation, education and employment “without a live proceeding” where he’s present.

The judge ordered President Rodney Bennett to “immediately” reinstate Doe in good standing and let him attend both courses and scholarship-required activities on campus, including practices and games. Starrett didn’t find Doe a threat based on Roe’s two-year wait to report the incident and her confirmation that Doe didn’t pose a threat to her “in any way.”

MORE: Ole Miss Title IX training says accusers’ lies show truth

IMAGE: Prixel Creative/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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