Massachusetts Campus Sexual Assault Investigations:  Federal Appeals Court Rules That Colleges Not Required to Allow Accused to Cross-Examine Accuser

I’ve written previously in this blog about how unfair the federal Department of Education’s “guidelines” to colleges & universities has been over the past few years, regarding how colleges should conduct investigations and hearings on matters involving accusations of student sexual misconduct.  This system, known as “Title IX Investigations”  is tremendously unfair, and weighted in favor of the accuser.  Title IX is a federal law that was originally intended to be an anti-discrimination law, but it has expanded over the years to include not only claims of  sexual discrimination, but also sexual “harassment” as well as sexual “assault” – both of which are currently defined under extremely broad, all-inclusive terms.  Colleges and universities that receive federal funds  – which include the vast majority of universities in the U.S. risk losing enormous sums of money in federal funding – tens of millions per year at many schools – if they do not adhere to Title IX regulations.

These guideline notices were sent out to all colleges & universities across the country under the Obama administration. Known in the university community as “The Dear Colleague Letter” when it was sent to colleges across the country, it was effectively a threat, however veiled it tried to be.   The main thrust of this letter:  Colleges & universities were reminded that if they did not adhere to U.S. Department of Education guidelines on sexual misconduct investigations, they could potentially lose federal funds.  That’s massive amounts of federal funds given to individual schools, annually, all across the U.S.  The letter’s translation:  “Do what we at the U.S. Department of Education say regarding these campus sexual assault hearings guidelines, or we’ll yank all the millions in federal funds that you so love.”  In response, schools across the country complied with the “suggested guidelines”, and constructed archaic investigative and disciplinary procedures that overwhelmingly favored accusers over the accused.  These new protocols were given added life in the wake of the #MeToo ‘movement’, and the net result is that many college students accused of “sexual misconduct” have been railroaded off campus, with a school disciplinary record that will effectively haunt that student at whatever school they might attempt to transfer to.

Very recently, a major further setback in this field of legal practice occurred when a federal appeals court in Boston overturned a lower federal court ruling that had favored a Boston College student who was deprived of his right to cross-examine his accuser.  At disciplinary hearings that B.C. conducted, the school (not surprisingly) found against the student, and ordered him expelled for one year.  The student appealed to the U.S. District Court in Boston for a preliminary injunction of the suspension order, arguing that Boston College’s campus sexual assault policy deprived him of due process protections affording him the right to cross-examine his accuser in real time, and argued that his appeal presented a likelihood of success on the merits. U.S. District Court Douglas P. Woodlock agreed, and granted the injunction.  B.C. appealed to the U.S. 1st Circuit Court of Appeals, and that court unfortunately reversed the injunction previously granted to the student.

The District Court’s legal reasoning in granting the accused student’s request for an injunction, was premised upon the fact that a prior decision on this subject matter had determined that in the setting of a public university, due process in a university disciplinary setting requires “some opportunity for real-time cross-examination, even if only through a hearing panel.”  The District Court applied that reasoning to the private university setting at Boston College.  That was a temporary win for the accused student.  Unfortunately, it didn’t hold:  The U.S. 1st Circuit Court of Appeals held that in a private university setting, federal due process guarantees don’t apply.  Instead, the appeals court held that the standard that should apply to sexual assault investigations at private colleges & universities is one of “basic fairness” in contract law – and the contract is the school’s policies and procedures manual usually found in the university Student Handbook.

Thus, when it comes to college student disciplinary hearings surrounding college sexual assault allegations at private colleges & universities, the disciplinary and hearings ‘system’ remains stacked against them.  At least for now, that is:  The U.S. Department of Education under Donald Trump has revised the Obama-era “suggested guidelines”, to allow for accused students to cross-examine, in real time, their accusers.  Those proposed corrections have yet to be fully approved and implemented in schools.  As a Massachusetts college student discipline lawyer, I cannot fathom how and why any fair-minded and just person would want to deprive an accused college student from being able to cross-examine someone who is accusing him or her of sexual assault.  Given that the entire point of these proceedings is to determine the truth to the fullest extent possible, who would object to this basic tenet of due process – the opportunity to question the accuser on the record?

The answer to that question lies in one word:  Politics.  Not so much elective politics, but in social politics:  It’s ‘in vogue’ these days to pander to the #MeToo protesters.  There isn’t a college or university, nor a company large or small, nor a government agency at any level, that will dare to stand up to this group.  Nowadays, all an accuser has to do is just that – merely accuse someone of sexual “assault” – and that person will be both digitally, and reputationally, tarred and feathered; their lives and careers ruined.  Most people don’t even understand the legal definition of a sexual “assault”:  Believe it or not, it can be unintentionally bumping into someone.  And sexual “harassment”?  It can be something as innocuous as asking someone out for coffee more than once.   Trust me, as a Boston sex offense lawyer, I’ve seen this far too many times.   Members of #MeToo always claim that they’re seeking “justice” and “corrective  measures” when it comes to sexual assault allegations.  My response as a Massachusetts sex charges defense lawyer:  No, most of them aren’t seeking these high-brow objectives.  They’re seeking power.  And visibility.  And relevance.

Will they ever regret this militant, extremist activity?  Yes- when some of them – especially some of their leaders – end up being the accused.  And no, sexual assault accusations aren’t limited to men only – women are being increasingly accused.  And these accusations aren’t limited to the opposite sex, either:  Gay women and men are increasingly the target of these accusations by their partners.

If you, a family member, or a college or university student that you know has been accused of campus sexual assault in Massachusetts, make sure that they law firm or attorney that you speak with is extremely experienced and effective at defending these students.  If you need us, we’d be glad to speak with you.