CINCINNATI >> A federal appeals court agreed today that the University of Cincinnati should not have suspended a student accused of sexually assaulting a fellow student.
The 6th U.S. Circuit Court of Appeal’s 3-0 ruling agreed with a federal judge’s 2016 order that put the suspension on hold after the accused student appealed the university’s decision to impose one. He claims his constitutional rights to due process were violated.
The appeals court ruling comes after Friday’s announcement that the Republican Trump administration is rolling back the Democratic Obama administration policy on investigating college sexual assaults. Education Secretary Betsy DeVos has said Obama administration policy had been unfairly skewed against those accused of assault.
Women’s rights groups warn the new interim guidelines will discourage reporting of sexual assaults.
Judge Richard A. Griffin, writing the appeal court’s opinion, said the judges are “sensitive to the competing concerns” in the case and agree UC has a strong interest in eliminating sexual assault on its campus and providing appropriate discipline for offenders.
The University of Cincinnati student referred to as “John Doe” contends he was denied a fair hearing without confronting his accuser, who failed to appear at his university disciplinary hearing. He contends their sex at his apartment in 2015 was consensual, while she had reported it wasn’t. He met the woman referred to in court documents as “Jane Roe” through a dating app.
The court ruling said with the “he said/she said” nature of the case, UC officials needed to provide fundamental fairness to a state university student facing long-term exclusion.
“Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair,” the ruling says. It agrees with the district court judge that the accused student has a strong likelihood of having the suspension permanently blocked.
He was facing a one-year suspension, and his attorney, Josh Engel, said he currently is enrolled.
“What is most important as the Department of Education reconsiders the guidance provided to schools is the Court’s recognition that due process is in the interest of both the accused and the accuser,” Engel said. “In this case, the court found that the ability to confront one’s accuser is important not merely because it aids in the defense by an accused student, but because it allows the school to better get at the truth of accusations.”
University spokesman Greg Vehr said UC “continues to strive to create the best environment it can for all our students by means of disciplinary processes and proactive efforts on how we can help prevent these events from occurring at all.”
DeVos’ new interim guidelines allow colleges to use a “clear and convincing evidence” standard in assessing sexual assault claims, which is harder to meet than the Obama-era standard of “preponderance of the evidence.” The rules will be in place temporarily while the Education Department gathers comments from interest groups and the public and writes new guidance.