Speaker: Suellyn Scarnecchia was General Counsel for the University of Michigan from 2008 to 2012. From 2003 to 2008, she was Dean of the University of New Mexico School of Law. She previously had joined the clinical faculty at the University of Michigan Law School in 1987 and taught in its Child Advocacy Law Clinic for 16 years in addition to serving as Associate Dean for Clinical Affairs. One of the cases that came into the Child Advocacy Law Clinic during her tenure involved Jan and Roberta DeBoer, an Ann Arbor couple who were trying to adopt a child known as “Baby Jessica.” The Michigan Supreme Court ruled against the DeBoers in 1993 after a protracted legal battle with the child’s biological parents, Dan Schmidt and Cara Clausen. She rejoined the Law School faculty to join the Human Trafficking Clinic in 2012,after stepping down as the University’s General Counsel. In 2019, the State Bar of Michigan recognized our speaker with the John W. Reed Michigan Lawyer Legacy Award as “an educator whose influence on lawyers has elevated the quality of legal practice in our state.” She retired from the University last May.
Sexual assault on college campuses has been much in the news lately. It is unlikely that “date rape,” unwelcome advances, or other forms of harassment are more prevalent today than in the past. Rather, thanks to the “Me Too” Movement, awareness of these things probably has risen. Women (and men) are more willing to speak up than may have been true in the past. When they do, they more often are taken seriously. These developments are undeniably a good thing.
How such reports are dealt with is another matter altogether. Substantiated accusations of sexual assault impact those accused in myriad ways, so a fair hearing is something which they as well as alleged victims should be afforded. Almost always there are no witnesses except the involved parties themselves. In such situations, fairness demands an opportunity to test memory and credibility. Due process can tolerate variances in procedure “appropriate to the nature of the case” so long as that opportunity is afforded. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
One method of doing so is face-to-face cross-examination, by a party himself or herself, or by his or her representative. The United States Court of Appeals for the Sixth Circuit, based in Cincinnati, recently held that universities must take that approach. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). Another method is for a university administrator or disciplinary body to investigate an accusation of sexual assault without allowing the accuser to be directly confronted by the accused about the incident. The United States Court of Appeals for the First Circuit, based in Boston, recently held that universities may take that approach. Haidak v. University of Massachusetts-Amherst, 2019 U.S. App. LEXIS 23482 (1st Cir. 2019).
When there is a disagreement between federal Circuit Courts of Appeal about what the United States Constitution requires, the Supreme Court often decides to settle the issue. The stage is set for the Supreme Court to accept a case centering on what hearing procedure universities must follow in sexual assault cases. Our speaker will explore the nuances of that question and related issues with us this afternoon.