CONSTITUTIONAL LAW--THIRD PARTY CROSS-EXAMINATION DURING CAMPUS MISCONDUCT HEARINGS SATISFIES DUE PROCESS REQUIREMENT UNDER FOURTEENTH AMENDMENT--HAIDAK V. UNIV. OF MASS. AMHERST, 933 F.3D 56 (1ST CIR. 2019).

• Author: Dean, Kori

A student enrolled in a public educational institution has a legally recognized property interest in her education, and thus is entitled to due process when that interest is threatened. (1) Due process requirements for administrative proceedings, such as school misconduct hearings, differ substantially from their criminal counterparts. (2) Despite this distinction, both utilize cross-examination to discern questions of fact and vet witness reliability. (3) In Haidak v. Univ. of Mass.-Amherst, (4) the First Circuit Court of Appeals considered whether cross-examination by a neutral third party during school misconduct hearings satisfies the Fourteenth Amendment's due process requirements. (5) The court ultimately held that cross-examination conducted by a third party satisfies due process as long as the testifying witness' testimony is properly probed. (6) The First Circuit also explicitly refused to follow the Sixth Circuit's holding in Doe v. Baum by ruling that public institutions were not required to allow student-lead crossexamination. (7)

James Haidak and Lauren Gibney were engaged in a romantic relationship while they were students attending the University of Massachusetts, Amherst ("University"). (8) While studying abroad in Barcelona, the couple got into an argument that turned physical and Gibney's mother reported Haidak's alleged assault against Gibney to the University. (9) The University issued a charge against Haidak for violating two provisions of the University's Code of Student Conduct ("Code") as well as a no-contact order prohibiting him from having further contact with Gibney. (10)

Despite the no-contact order, Haidak and Gibney continued consensual communication. (11) As a result, Haidak was issued second and third notices charging him with violations of the Code. (12) At the same time the third notice was issued, the University suspended Haidak pending a disciplinary hearing. (13) Nearly five months later, the University held a hearing on the charges issued against Haidak. (14) Prior to this hearing, Haidak submitted a list of thirty-six proposed questions for the Hearing Board ("Board") to consider when questioning Gibney. (15) The Board ultimately reduced this list to sixteen, with no question worded identically to any on Haidak's initial list. (16)

The Board ultimately found Haidak responsible for physical assault and failure to comply with the direction of University officials, resulting in his expulsion. (17) He subsequently filed suit against the University alleging that the manner in which his hearing was conducted violated his right to due process under the Fourteenth Amendment. (18) The district court granted summary judgement in the University's favor. (19) On appeal, Haidak argued that due process requires that a student respondent be allowed to question an adverse witness directly when a disciplinary proceeding turns on that witness's credibility. (20) The First Circuit rejected this argument, ruling that the procedures of a common law trial need not govern a university disciplinary hearing and that due process was satisfied when the Board conducted its own cross-examination. (21)

The Fourteenth Amendment prohibits states from depriving citizens of life, liberty, or property without due process of law. (22) There are two types of due process under the Fourteenth Amendment: substantive and procedural. (23) Substantive due process protects citizens from the arbitrary and wrongful deprivation of a fundamental constitutional right, while procedural due process affords citizens the right to appropriate procedures before they are stripped of a property or liberty interest. (24) Whether procedural protections are due to a citizen under certain circumstances depends primarily on "the extent to which the individual will be 'condemned to suffer a grievous loss.'" (25) This question of extent creates a sort of spectrum for procedural due process requirements, with civil due process located on one end and criminal due process located on the other. (26) Since defendants in criminal proceedings are more likely to suffer the loss of life or liberty, due process requirements in criminal cases are far more expansive than those in civil or administrative matters, where life and liberty are usually not at stake. (27)

When determining whether a specific procedure violates a citizen's due process rights, a court must first address the nature of the property or liberty interest at stake and then evaluate the adequacy of the proceedings afforded to the citizen. (28) The Supreme Court in Mathews v. Eldridge listed three factors for a court to consider when determining the sufficiency of procedural due process in administrative proceedings: (1) the private interest implicated by government action; (2) the risk of erroneous deprivation of said interest through the procedures used and the value of additional or substitute procedural safeguards; and (3) the government's interest and the financial and administrative burdens that additional procedural requirements would entail. (29) Courts approach criminal procedural due process differently, however. (30) In the absence of a Mathews-like test, courts must rely on a wide variety of precedent to ensure that the due process rights of defendants in criminal trials are adequately protected. (31) Among the various criminal due process rights protected under the Constitution is the right to confront witnesses through cross-examination. (32) The Supreme Court declared that it is "one of the safeguards essential to a fair trial" and the most effective means of ascertaining the truth. (33)

Legal scholars have defined cross-examination as "beyond any doubt the greatest legal engine ever invented for the discovery of truth." (34) While cross-examination may be invaluable to a defendant who seeks to refute evidence presented against him, it also has its shortcomings. (35) In cases that involve sexual assault and domestic violence, for example, the adversarial nature of such questioning often retraumatizes victims who testify against their abusers. (36) Despite this, it is universally acknowledged that cross-examination remains a fundamental procedural due process right afforded to criminal defendants. (37) Though the utility of cross-examination is almost unanimously accepted, some courts hesitate to extend this right to students accused of misconduct, primarily due to the difference in interests at stake and the resulting burden that schools would bear. (38) As a result, school misconduct hearings tend to resemble criminal trials through their fact-finding procedures, but markedly differ in other procedural aspects. (39)

In school misconduct hearings, courts agree that schools must provide, at minimum, notice to students of specific charges laid against them and an opportunity to be heard. (40) While it is widely accepted that these hearings should not adopt all procedural formalities of a criminal trial, courts vary in their interpretations of which additional procedural safeguards schools must afford respondents. (41) Specifically, federal circuit courts are split on whether students should have the opportunity to cross-examine adverse witnesses during these hearings. (42)

The Sixth Circuit recently addressed this issue in Doe v. Baum and held schools must afford a student respondent the right to cross-examine witnesses when the outcome of a hearing depends on certain findings of fact. (43) While the Sixth Circuit was not the first to deem cross-examination a due process requirement for accused students, other courts have refused to adopt such a ruling, referencing the administrative and financial burdens of facilitating trial-type procedures. (44)

School misconduct cases highlight the pervasiveness of intimate partner violence on college campuses. (45) While statistics quantifying sexual assaults and intimate partner violence on college campuses vary, they highlight how women enrolled at postsecondary educational institutions experience rape, sexual assault, and intimate partner violence at incredibly high rates. (46) One report from the U.S. Department of Justice found that from 1995-2013, women ages 18 to 24 had the highest rate of rape and sexual assault victimizations compared to women in all other age groups. (47) Among those women who identified as college students, only 20% reported their rapes or sexual assaults to police. (48) The statistics on domestic and intimate partner violence are similarly concerning, with women ages 18 to 24 experiencing higher rates of intimate partner violence than women in all other age groups. (49) Schools have a legitimate interest in maintaining safe educational environments for students, and the prevalence of campus sexual assaults and domestic violence undoubtedly implicate this interest. (50)

In Haidak v. Univ. of Mass. -Amherst, the First Circuit acknowledged the conflicting interests between educational institutions and the students attending those institutions. (51) Students have a recognized property interest in their postsecondary education; at the same time, educational institutions have an interest in creating and enforcing codes of conduct to maintain order and ensure student safety. (52) Here, both interests were implicated: the University had reason to believe that Haidak had used physical force against another student and subsequently harassed her, and Haidak faced potential expulsion as a result. (53) Because Haidak faced the possible divestiture of his interest in his education, the court ruled that the University was obligated to abide by certain procedural due process requirements, including notice and opportunity to be heard. (54)

Haidak took issue with how his misconduct hearing was conducted and alleged several due process violations in his complaint. (55) Among these, he...