United States: First Circuit Splits From Sixth Circuit And Education Department On Title IX

Philip Catanzano and Jeffrey Nolan are Senior Counsel in our Boston office.


  • The U.S. Court of Appeals for the First Circuit determined that constitutional due process principles do not require public universities to permit respondents or their advisors to cross-examine complainants in Title IX matters.
  • The First Circuit's decision in Haidak v. University of Massachusetts-Amherst creates a federal circuit court split, and outlines cross-examination standards that are different from those outlined in the U.S. Department of Education's draft Title IX regulations.

The U.S. Court of Appeals for the First Circuit issued on Aug. 6, 2019, an important opinion on campus sexual misconduct adjudications. In Haidak v. University of Massachusetts-Amherst, the First Circuit decided that constitutional due process principles were satisfied by having a neutral party interview the complainant and respondent in a Title IX student disciplinary matter. The decision is important because many higher education institutions utilize this mode of fact-finding and because the decision conflicts with an earlier Sixth Circuit opinion that required live cross-examination of the complainant by the respondent or their advisor. The Haidak opinion also puts the First Circuit on a collision course with the U.S. Department of Education's proposed Title IX regulations, insofar as those proposed regulations purport to require cross-examination on the terms outlined by the Sixth Circuit.

Background and First Circuit Decision

In Haidak, the complainant student reported to the University of Massachusetts-Amherst (University) that her boyfriend at the time, fellow student Haidak, had assaulted her while the two were studying abroad. The University issued a no-contact order as a safety measure. Both parties ignored the order, but the University suspended Haidak on an interim basis for approximately five months and ultimately expelled him.

Haidak argued his due process and Title IX rights were violated because the hearing process was biased and did not provide him an appropriate opportunity to challenge the testimony against him. The trial court dismissed his claims entirely; the First Circuit upheld one allegation: that his interim suspension had been constitutionally unfair because the University failed to afford him adequate notice of and an opportunity to challenge the suspension before it was imposed.

Importantly, the First Circuit also confronted Haidak's argument that the University's process violated his right to procedural due process by denying him the opportunity to interrogate the complainant directly. Specifically, Haidak argued that due process required "more than inquisition of the complaining witness by the factfinder alone." In making this argument, Haidak relied upon Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), in which the Sixth Circuit determined that the University of Michigan's sexual misconduct adjudication process was procedurally deficient because the complainant was not sufficiently questioned during her examination by the factfinder. However, as the First Circuit pointed out, the Sixth Circuit then "took the conclusion one step further than we care to go, announcing a categorical rule that the state school had to provide for cross-examination by the accused or his representative in all cases turning on credibility determinations."

By contrast, the First Circuit stated that "we have no reason to believe that questioning of a complaining witness by a neutral party is so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation [of appropriate process]. We also take seriously the admonition that student disciplinary proceedings need not mirror common law trials. ... If we were to insist on a right to party-conducted cross-examination, it would be a short slide to insist on the participation of counsel able to conduct such examination, and at that point the mandated mimicry of a jury-waived trial would be near complete."

The First Circuit reasoned that "when a school reserves to itself the right to examine the witnesses, it also assumes for itself the responsibility to conduct reasonably adequate questioning. A school cannot both tell the student to forgo direct inquiry and then fail to reasonably probe the testimony tendered against that student." The First Circuit indicated that the University's handling of the issue created a close call, pointing out that the tone of the complainant's interview was more gentle than the tone of Haidak's interview, and that the University struck 20 of the 36 questions Haidak had proposed. The hearing panel avoided any constitutional infirmities through its careful and detailed questioning of the two parties three times each. The First Circuit ultimately determined that the hearing panel conducted "a hearing reasonably calculated to get to the truth," and, thus, Haidak was not denied due process in the expulsion hearing. Both Haidak and Baum involved public universities, at which there exists a constitutional right to due process that does not exist at private institutions.

Conclusion and Takeaways

Haidak represents a rare moment when the First Circuit has opined on the structure and execution of a sexual misconduct policy on a college or university campus. The Haidak decision also comes at a pivotal time because the Education Department's proposed Title IX regulations rely heavily on the Sixth Circuit's Baum decision. The proposed regulations, as currently written, incorporate the rationale of Baum, and would require institutions to allow cross-examination of witnesses by the parties' advisors, in person or in separate rooms through the use of videoconferencing. (See Holland & Knight alert, Newly Proposed Title IX Regulations Promise Sweeping Changes, Nov. 19, 2018.) The Haidak decision creates a circuit court split and articulates an alternative view of due process that the Education Department may (or may not) consider in deciding what procedures will be required by the final Title IX regulations.

While the final Title IX regulations will be relatively more influential because they will apply to all public and private institutions that receive federal funds, the Haidak decision is still significant for institutions in the First Circuit because it provides insight into what the First Circuit considers to be a workable, fair process for student sexual misconduct adjudications. Colleges and universities in the First Circuit should bear Haidak in mind when updating Title IX-related policies and procedures for the coming academic year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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