The First Circuit Speaks Out On Student Discipline & Due Process
What you should know about Haidak v. University of Massachusetts-Amherst
The United States Court of Appeals for the First Circuit recently issued an important decision about disciplinary process in public educational institutions. The First Circuit is the federal court of appeals covering much of New England, including ME and New Hampshire. The federal courts of appeals have the final word on matters of federal law within their regions of the country unless and until the Supreme Court weighs in. There are two key “take-aways” about which our school clients should be aware.
At issue in Haidak v. University of Massachusetts-Amherst was the University’s suspension and eventual expulsion of a student who had been accused by his girlfriend (hereinafter “Jane Doe”) of violating a No Contact Order (“NCO”) put into place by the school following allegations of physical assault made against him by Jane Doe. The underlying facts involved a “tumultuous” and “on-again/ off-again” dating relationship between Haidak and Jane Doe. Following Jane Doe’s report (and Haidak’s counter- allegation) of an alleged physical assault that occurred while Haidak and Jane Doe were on a study abroad trip in Barcelona, University administrators issued a NCO to Haidak. Within a month, Haidak and Jane Doe resumed their dating relationship, which resulted in Haidak violating the NCO by calling, texting, and making physical contact with Jane Doe. Jane Doe’s mother reported to a University administrator Haidak’s violation of the NCO, but did not disclose the fact that Haidak and Jane Doe’s relationship had resumed. Subsequently, University administrators warned Haidak on two occasions that he was violating the University’s code of conduct by violating the NCO and by engaging in conduct constituting harassment.
The University suspended Haidak in June 2013 without a hearing and without a formal assessment of the allegations made by Jane Doe’s mother, which could have revealed the fact that Haidak and Jane Doe had resumed their romantic relationship before the alleged NCO violations occurred. Haidak’s suspension lasted for five months during which time Haidak and Jane Doe continued to have contact. The University held a formal student conduct hearing in November 2013 and concluded that Haidak had physically assaulted Jane Doe in Barcelona and that Haidak had violated the NCO. However, because Haidak and Jane Doe had resumed their romantic relationship prior to the NCO violations, the hearing panel did not find Haidak responsible for harassing Jane Doe based upon his contact with her after the NCO was put into place. Based upon these findings and Haidak’s record of prior misconduct, the University expelled Haidak. Haidak sued, alleging that the school had infringed upon his constitutional due process rights by, among other things, a) suspending him without notice and a prior hearing and b) not allowing him to directly cross-examine the accusing student prior to his expulsion.
We bring this case to your attention for two primary reasons:
First, the First Circuit held in Haidak that—absent some sort of clear emergency—constitutional due process requires notice and an opportunity to respond and rebut allegations prior to an interim but long-lasting suspension. Given that there was no clear “exigency” in Haidak’s case and the University did nothing more than an “informal interview” of Jane Doe prior to deciding to place Haidak on an interim suspension—which lasted 5 months—the court found that the University violated Haidak’s constitutional rights when it failed to provide him with notice and an opportunity to challenge the suspension decision. The court emphasized that a suspension may cause monetary and other harm to a student even when the student is ultimately expelled after being provided with due process (as was the case with Haidak). Although the holding in Haidak only binds public schools who have a constitutional obligation to provide due process to students, it is nonetheless instructive for private schools in ensuring that their processes are fundamentally fair. For that reason, we recommend that educational institutions provide an accused student with a pre-suspension written notice and an opportunity to be heard, where there is no emergency (e.g., immediate threat to student safety) and the suspension is likely to last for a significant amount of time.
Second, the First Circuit rejected the argument that by denying Haidak the opportunity to directly cross-examine Jane Doe, the University failed to provide Haidak with a fair hearing before expelling him. The First Circuit explained that “unmediated”—or direct—cross-examination, which is constitutionally mandated in a criminal trial where an individual’s liberty is a stake, is not required in school disciplinary hearings, even when the outcome is expulsion. The First Circuit also explained that having a neutral decisionmaker question the parties in a hearing setting, at least when performed carefully and the parties have an adequate opportunity to pose questions to one another through the decisionmaker, is sufficient to provide due process protection.
The legal mavens among our readership will recognize that the First Circuit’s decision in Haidak is a flat rejection of the Sixth Circuit’s contrary holding that accused students in Title IX disciplinary hearings at a public University have a right to directly cross examine their accusers. As such, Haidak creates a split in the circuit courts about what process is due under Title IX, but for the time being provides clarity to schools in the First Circuit who may have been concerned about the practical implications of facilitating cross-examination in Title IX proceedings. It is expected that the Title IX regulations will also address the issue of “live cross examination” when they are released and that this question could even wind its way up to the Supreme Court. We will keep you updated of any further developments that require educational institutions to adjust their processes for sexual misconduct adjudications. In the meantime, if you have any questions please reach out to any members of our education and investigation team, including Kai McGintee, Abbey Greene Goldman and Sara Hellstedt.