Why we keep harping on due process

From time to time, we have noted that in Title IX cases, due process that outside courts will recognize as such is important. The Biden administration is expected to come out with guidelines that shift away from the Trump guidelines that shifted away from the Obama guidelines. But no one has shifted the kind of sniff tests external courts are likely to apply when such cases are appealed to them. Here is yet another illustration from the NY Times:

In a 2018 disciplinary hearing at Yale University, Saifullah Khan listened as a woman accused him of raping her after a Halloween party. The woman, who had graduated, gave a statement by teleconference to a university panel, but Mr. Khan and his lawyer were not allowed in the  room with the panel. Nor could his lawyer, under the rules of the hearing, cross-examine her. Instead, they were cloistered in a separate room, as her testimony piped in by speakerphone. He felt, he said, “there is absolutely nothing I can do to change my situation.” As he feared, Yale expelled him.

Mr. Khan’s criminal trial, months earlier, was markedly different. His lawyer cross-examined the woman in ways that horrified women’s rights advocates: How were you dressed? How much did you drink? Did you send flirty texts? And unlike the Yale hearing, the prosecutors had to prove his guilt “beyond a reasonable doubt.” After barely three hours of deliberations, Mr. Khan was acquitted.

The difference between those two hearings — in process and outcome — led Mr. Khan to make an unusual move: He sued his accuser for defamation for statements she had made during the Yale hearing. That lawsuit, filed in 2019, is challenging the way universities across the country have adjudicated such sexual assault hearings. Normally, such a lawsuit would not have much of a chance. In Connecticut and other states, witnesses in such “quasi-judicial” hearings carry absolute immunity against defamation lawsuits.

But the Connecticut Supreme Court in June gave Mr. Khan’s suit the greenlight to proceed. It ruled that the Yale hearing was not quasi-judicial because it lacked due process, including the ability to cross-examine witnesses...

Full story at https://www.nytimes.com/2023/09/17/us/yale-rape-case-defamation.html.

As part of our harping on the need for due process, we have also noted that courts generally do defer to union-management grievance-and-arbitration cases of the type found at UC and other universities with unionization. Those mechanisms are not as formal as external courts, but do feature such characteristics as final decisions by outside neutrals, cross-examination of witnesses, etc.