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Rulings from the United States Court of Apeals on Cross Examination in Title IX Cases

The First Circuit’s ruling on August 6, 2019,. in Haidak v. University of Massachusetts Amherst diverged from the SIxth Circuit’s ruling on cross examination in Doe vs. Baum . The Sixth Circuit ruled in Doe vs. Baum that, “...if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” In Haidak, the First Circuit agreed that cross-examination was needed in cases with disputed facts. However, the First Circuit concluded that the cross-examination did not need to be conducted by the accused or their representative. The First Circuit agreed that cross-examination by the University would be sufficient to satisfy due process rights. However, the Court noted that, “[w]hen 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.”

Christine Garner