TBJ MARCH 2023
Cross-Examination in Student Sexual Misconduct Hearings
The current state of the law.
Written by Sean Flammer
I spent over a decade as a litigator before I went in-house at the
University of Texas System. Over those years, I had countless hearings.
One of my most memorable hearings was in a Title IX/due process case in
which I represented a university. The case arose from a university
disciplinary proceeding in which the institution expelled a student for
rape.
The procedures at the university disciplinary hearing did not allow for
adviser-led cross-examination of the complainant.1 Instead,
the university required the respondent to provide any cross-examination
questions to the hearing officer for the hearing officer to ask the
complainant. The legal issue was whether that form of indirect
cross-examination violated the expelled student’s due process rights.
In the years leading up to that hearing and since then, numerous other
courts around the country were called upon to answer that same question
or one similar to it: At public institutions of higher education, to
what extent does a student have a due process right to cross-examine
witnesses at a university disciplinary hearing? Some courts held
that indirect cross-examination is constitutional.2 But one
court’s opinion has been read by some to suggest that adviser-led
cross-examination is necessary,3 stating, “[I]f the
university does not want the accused to cross-examine the accuser under
any scenario, then it must allow a representative to do
so.”4
In August 2020, however, new Title IX regulations mandated that
institutions provide adviser-led cross-examination. At that point for
attorneys involved in these hearings, because the regulations required
adviser-led cross-examination, the question of whether constitutional
due process also required it became more of an academic issue than a
practical one. But in June 2022, the Biden administration proposed
revised regulations that would make adviser-led cross-examination
permissible but not required.5 If the
proposed regulations become final, they would make relevant again the
question of whether due process requires adviser-led cross-examination
at public institutions.
This article will address the current state of the law in Texas on
whether due process requires adviser-led cross-examination in student
sexual misconduct disciplinary hearings at public institutions and will
examine the latest developments in both federal due process law and its
state law equivalent.
Before addressing recent legal developments, however, a quick overview
of the university disciplinary process for sexual misconduct cases would
be helpful.
A General Overview of the University Student Disciplinary
Process for Sexual Misconduct Cases
The Investigation and Hearing Overview
Generally speaking, the institutional process at many post-secondary
institutions in Texas works as follows. The institution receives a
report from either the person against whom sexual misconduct was
allegedly committed (the “complainant”) or from a professor,6
friend, etc., who knows about it. Notice is then provided to the person
who is accused of committing the alleged sexual misconduct (the
“respondent”) and an investigation begins.
During the investigation, a university investigator will meet with the
complainant, respondent, and any other relevant witness either party
identifies, and the investigator will receive any potentially relevant
evidence such as text messages, photos, etc. Then, under current Title
IX regulations, the matter will proceed to a hearing. At the hearing, a
university hearing officer hears from the complainant, the respondent,
and any witnesses. The parties may have an adviser present, and the
adviser may be an attorney. Historically those advisers did not actively
participate in the hearing or advocate as lawyers do in court. Instead,
the student complainant and respondent would talk during the
hearing—asking questions, making opening or closing statements, etc. The
exception to this is that typically cross-examination questions of the
other party were not asked directly. Those cross-examination questions
instead were provided to the hearing officer, and the hearing officer
asked the other party. The 2020 Title IX regulations, however, changed
this and required that advisers ask questions of any witnesses.
After the hearing, the hearing officer will decide whether the
respondent violated the institution’s sexual misconduct policy and if
the respondent is “found responsible”7 for violating the policy, the
hearing officer will issue disciplinary sanctions. Either party can
appeal the hearing officer’s decision.
Why Universities Often Prefer Indirect Cross-Examination
Whether there is a constitutional due process right to a particular
procedure in a university disciplinary hearing comes down to a balancing
test.8 Details of that test are not within the scope of this
article, but a key component is the benefit versus the cost of the
requested procedure. The plaintiffs suing universities typically make
the argument that cross-examination is the “greatest legal engine ever
invented for the discovery of truth,” and it is assumed that the only
acceptable form of cross-examination is adviser-led because that is what
lawyers do in most other settings.9 But even assuming that
cross-examination is a tool used for discovering the
truth,10 the benefit of having the same questions
asked by an adviser as opposed to a neutral fact finder has little to no
benefit at all.
On the other hand, adviser-led cross-examination in sexual misconduct
cases comes at a cost. Universities are typically concerned it could
retraumatize certain witnesses, such as victims of sexual assault.
Further, there is a great concern that adviser-led cross-examination
leads to a decrease in reports of sexual misconduct. A decrease in
reports means that universities are therefore less able to protect the
campus communities from those who commit sexual misconduct. This concern
is not just theoretical. When the U.S. Department of Education released
its proposed regulations11 in June 2022, it
reported that it heard from several postsecondary institutions
that—following the implementation of the 2020 regulations—they
“experienced a decrease in the number of complaints filed as well as an
increase in the number of individuals who report sexual harassment but
decline to move forward” with the university process after learning
about the process, including that they would be cross-examined by the
respondent’s adviser.12 For universities, these
costs alone often outweigh any benefit theoretically associated with
advisers asking the questions as opposed to a hearing officer. (Again,
the same cross-examination questions are asked—the difference is who
asks them.)
Accordingly, if the proposed regulations that were announced in June
2022 become final and institutions are permitted to use indirect
cross-examination instead of adviser-led direct cross-examination, I
would suspect many would make that choice—assuming it would comport with
due process.13 Thus, the question is, Does it?
Cross-Examination Under Federal Due Process Law
In the U.S. Court of Appeals for the 5th Circuit, developments over
the past few years have made clear that students in Title IX proceedings
do not have a constitutional due process right to adviser-led
cross-examination. In Walsh v. Hodges, a university terminated
a faculty member accused of sexually harassing a
student.14 At the university’s administrative
termination hearing, the student did not testify and the faculty member
later sued, arguing that he had a right to cross-examine the
student.15 The 5th Circuit agreed, noting
agreement with the U.S. Court of Appeals for the 1st Circuit that “due
process in the university setting requires ‘some opportunity for
real-time cross-examination, even if only through a hearing
panel.’”16 The court noted that questioning by a
neutral party such as the hearing officer would not be so fundamentally
flawed that it would create an unacceptable risk that the panel would
reach the wrong decision.17
Any concern that the court might distinguish Walsh from a
student context was put to rest in Van Overdam v. Texas A&M
Univ.18 In that case, a student was suspended
for violating the sexual assault policy at a university. He sued,
alleging that the university violated his due process rights when it
allowed indirect cross-examination through the hearing officer instead
of direct attorney-led cross-examination.19 The 5th Circuit
affirmed the district court’s dismissal of the claim, holding that
Walsh controlled. The court made clear that indirect
cross-examination does not violate an accused student’s due process
rights.20
Cross-Examination Under Texas Due Course of Law
The Texas Constitution has an equivalent provision to the federal due
process clause.21 Whether indirect cross-examination violates
the Texas Constitution was the issue in Tex. A&M Univ. v.
Doe.22
In that case, the university expelled a student for violating its sexual
misconduct policy. The student sued, arguing that the indirect method of
cross-examination through a hearing panel violated his due-course-of-law
right because he should have been able to have attorney-led
cross-examination.23 A trial court agreed, but the Waco Court
of Appeals reversed that decision. It held that indirect
cross-examination did not violate a student’s due-course-of-law
rights.24
Conclusion
The bottom line is that over the past few years, both federal and
state courts in Texas have further solidified the constitutionality of
indirect cross-examination at student sexual misconduct hearings. For
public post-secondary institutions in Texas contemplating restoring the
process of indirect cross-examination at sexual misconduct hearings,
there is ample legal support to do so. TBJ
Note: The views expressed in this article are solely those of the
author and do not reflect the views of the University of Texas System or
any state entity.
SEAN FLAMMER
specializes in Title IX, student affairs disputes, employment issues,
constitutional litigation, and general litigation. Flammer graduated
with high honors and with the Order of the Coif distinction from the
University of Texas at Austin School of Law in 2007. After clerking for
a federal appellate judge, he joined a large litigation firm in Austin.
Flammer practiced trial and appellate litigation before joining the
Office of the Texas Attorney General, where he spent over five years
representing universities and other state agencies in complex
litigation. Flammer had a heavy docket of litigating and advising
clients on Title IX due process matters.