Judge rules faculty facing misconduct charges have right to cross-examine accusers

Tuesday, November 20, 2018 - 3:47pm

According to a court opinion filed Monday, a federal judge ruled professors undergoing trial for accusations of misconduct have the right to cross-examine accusers — particularly if defendants face serious disciplinary actions.

According to a court opinion filed Monday, a federal judge ruled professors undergoing trial for accusations of misconduct have the right to cross-examine accusers — particularly if defendants face serious disciplinary actions. Buy this photo
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According to a court opinion filed Monday, a federal judge ruled professors undergoing trial for accusations of misconduct have the right to cross-examine accusers — particularly if defendants face serious disciplinary actions.

In September, the U.S. Court of Appeals ruled in Doe v. Baum that universities “must give the accused student or his agent an opportunity to cross-examine the accuser” in cases of sexual assault investigations. According to the court opinion, the University of Michigan failed to comply with the holding that accused students have the opportunity to cross-examine their accuser when credibility is in question. The ruling has widespread ramifications for the student sexual misconduct policy and hearing processes. Now, faculty and staff misconduct is under the spotlight.

“Plaintiff challenged the credibility of her accusers but was denied an opportunity to cross examine them. The Sixth Circuit very recently emphasized the importance of cross examination to university disciplinary proceedings. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018),” the new court opinion reads. “Plaintiff has adequately pled that the University violated her Fourteenth Amendment rights by sanctioning her under SPG 201.96.”

The defendant in the case is Prof. Pamela Smock, who faced charges of sexual harassment from three graduate students, but was cleared of Title IX violations in December 2016. She was reported as conducting “inappropriate behavior,” and LSA Dean Andrew Martin stated he found this report “troubling” before freezing Smock’s salary, removing her sabbatical and disabling her role as an advisor to doctoral students for three years. 

The court opinion maintains, however, Smock did not make an adequate constitutional challenge to the University’s policy, SPG 201.96, nor did she adequately plead that her “sanctions constituted retaliation against her exercise of protected speech.”

David Nacht, counsel for Smock, stated while the parties involved in Doe v. Baum were students, this ruling on faculty’s right to cross-examine accusers extends the previous case precedent.

“Doe v. Baum was, in fact, a student case, but the logic of the opinion doesn’t necessarily limit itself to that, and so the judge was guided by that precedent in making his decision,” Nacht said. “Why should a freshman in college have more due process rights if they’re facing suspension, for instance, than a tenured professor who is accused of the same conduct, or similar conduct? It is not as if the professor has less at stake, so I think there’s an inherent logic to the court’s decision.”

Overall, University spokesperson Kim Broekhuizen said, the court’s ruling was “overwhelmingly in favor of the university,” noting the finding of constitutionality of the University’s policy. Broekhuizen also pointed out the denial of the University’s motion to dismiss Smock’s due process complaint did not necessarily reflect the final ruling in the case.

Nacht also voiced his support for the recent ruling, stating individuals should be given the right to cross-examine accusers.

“I think generally we’re having a very un-nuanced debate in this country about investigations and accusations … When you empower investigators to make decisions that have the power to destroy someone’s reputation and you deprive the person being accused of fundamental rights to challenge the accuser, then you inevitably result in some people who are accused and innocent being found guilty,” Nacht said. “We’ve known for a long time how important cross-examination is. It is not progressive or liberal or decent to prevent people who are accused from defending themselves.”

This article has been updated to include comments from University spokesperson Kim Broekhuizen.