The University of Colorado-Boulder’s (CU) refusal to allow “live adversarial questioning” in a sexual misconduct proceeding may violate an expelled student’s due process rights, a federal judge ruled last week.
Colorado District Court previously denied summary judgment to CU Boulder on multiple due process grounds: (1) Propriety of single-investigator model, (2) lack of hearing, (3) lack of cross-examination, and (4) withholding information.
The taxpayer-funded university will have to explain to U.S. District Judge William Martinez at a December bench trial why it didn’t give Girolamo Messeri, an Italian student, “a hearing before a neutral arbitrator” in his Title IX case.
On single-investigator model and right to hearing, the court notes: Requiring a hearing before a neutral arbitrator would also reduce the risk of error….providing a fresh perspective on any credibility determinations and decrease the likelihood that a party would be erroneously found responsible. It continues, “A reasonable fact-finder could thus find that the University’s failure to provide (student) a hearing before a neutral arbitrator violated his procedural due process.
Judge Martinez stated CU violated the student’s due process by not allowing cross-examination of his accuser and witnesses.
In his decision, the judge gave a remarkably blunt conclusion on cross-examination: The Supreme Court has stated that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”
He continued: This is a classic ‘he said, she said’ case that turns almost entirely on witness credibility. Without live adversarial questioning, Plaintiff cannot probe the witnesses’ stories to test their memories or potential ulterior motives, or to observe the witnesses’ demeanor. Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The university’s interest in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘converting its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.
The judge was also stunned by the University’s excuse for hiding the identity of a key witness. CU-Boulder simply claimed that constitutional due process does not promise accused students “every piece of evidence they desire,” and it cited an irrelevant appeals court decision from a case where opposing witnesses openly testified. Martinez disagreed with the University. Since the witness known as “W1” didn’t testify in front of Messeri, he was “effectively deprived of an opportunity to discover any inconsistencies…that were not plainly evident” in the evidence summary given to Messeri. The judge concluded: “Disclosure of key witnesses’ names provides a minimal burden on the University. The probative value of the information and risk of erroneous deprivation, however, is potentially substantial.”
The next step in the litigation is a trial preparation conference scheduled for Nov. 13. The December bench trial will not include the student’s gender-bias claim, which was previously rejected by Martinez.
The university expelled Messeri in December 2016 after finding that he forced a female who was not a student at CU to perform oral sex on him in September. She did not notify CU Boulder administrators of her allegations, but rather reported Messeri to campus police, who interviewed “Jane Doe” three times over six weeks and Messeri once. While Messeri was charged with sexual assault, the Boulder District Attorney’s Office dismissed the case because “it did not believe it could get a guilty verdict at trial.”
Messeri is seeking both damages and erasure of his expulsion from his transcript.