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.

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