The U.S. Court of Appeals for the Third Circuit Court decided on May 29 that “fairness” defined in several colleges’s investigations of sexual harassment means that students must be given a live hearing and cross-examination process.

The decision, written by Judge David Porter, stated that if a college’s policy under Title IX of the Education Amendments of 1972 promises a “fair” process, the college must allow both parties to participate in “some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.”

The Title IX of the Education Amendments of 1972 is a “comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.” This law mandated that schools that receive federal funding must address issues of sexual harassment on their campuses. This requirement, of live cross-examinations and hearings is a new policy and a major critique of the new Title IX regulations issued by the U.S. Department of Education last month. As explained by Forbes, “being cross-examined might re-traumatize a sexual assault victim and the prospects of such cross-exams might discourage reporting.”

The lawsuit that led to this decision was filed in U.S. District Court for the Eastern District of Pennsylvania against the University of the Sciences. A male student, John Doe, claimed that this private institution in Philadelphia discriminated against him because of his sex. In 2018, USciences found Doe responsible for the sexual assault of two female students and expelled him. According to the lawsuit, in one of the incidents both Doe and the female student were intoxicated and the university held only Doe accountable due to his initiation of sexual activity. Doe felt that this was unfair, as he insisted that they were comparably drunk.

Doe also claimed that the university breached its contract with him. In the USciences student handbook, it says that the college will provide a process that is “adequate, reliable, impartial, prompt, fair and equitable” , which Doe did not feel as though he received. As the handbook does not define “fairness,” the 3-judge panel interpreted it based on previous Pennsylvania court opinions, which “determined that fairness includes the chance to cross-examine witnesses and the ability to participate in a live, adversarial hearing.” Thus, “the panel reversed the district court’s decision  to dismiss the lawsuit against USciences and ordered the lower court to proceed with the lawsuit and apply its new opinion,” according to Insider Higher Ed

This is not the first time that live hearings and cross-examinations have been mandated, the First Circuit in the Northeast and Sixth Circuit in the Midwestern U.S. both have ruled that these must be provided in “he said/she said” cases. The courts came to this decision because colleges and universities are subject to the due process clause. 

This new decision applies this same standard to private institutions in different parts of Delaware, New Jersey, and Pennsylvania. 

Sources: Forbes 05/06/20; Insider High Ed 06/02/20

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