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Cross-Examination as a Procedural Due Process Right for Respondents

Messeri v. University of Colorado at Boulder, No. 1:18-cv-02658-WJM-SKC

Summary of facts:

In 2016, Jane Doe and Messeri met on the campus of the University of Colorado at Boulder where Messeri was enrolled. One night, while in Messeri’s room, Doe performed oral sex on him. Two days later Doe reported to the University of Colorado Police Department (CUPD) that Messeri forced her to perform oral sex. In addition to commencing its own investigation, CUPD notified the University’s Office of Equity and Compliance (OIEC) of Doe’s report. OIEC assigned two investigators who did not interview Doe or Messeri directly, but instead relied upon the individual interviews already conducted by CUPD as evidence in making a determination that Messeri violated university policy.

The summary[1] and final investigation report concluded that under the preponderance of the evidence standard Messeri had violated the nonconsensual sexual intercourse provision of OIEC’s sexual misconduct policy. While the university did follow its procedures, those procedures did not provide an opportunity for Messeri to cross-examine Doe and a key witness. The process also deprived him of an opportunity to review the entire investigative file that included a video of Doe after the incident allegedly occurred. Messeri alleged this was a key piece of relevant evidence, that if provided to him, would have allowed him an opportunity to challenge the credibility of both Doe and the witness. He was subsequently permanently expelled from the University and excluded from all University campuses. Messeri filed a lawsuit against the University alleging procedural and substantive due process violations and discrimination on the basis of sex under Title IX.


This case grapples with the increasingly common question of whether a respondent is entitled to an opportunity to cross-examine the complainant or question witnesses. Acknowledging that an increasing number of courts have recognized that the Fourteenth Amendment’s Due Process Clause requires some form of cross-examination, the district court declined to grant summary judgment to the university on this issue. Like other courts before it, this court was particularly persuaded by the facts of this case, which pitted Doe’s testimony against Messeri’s testimony in a “classic” word-against-word case. The court also sided with Messeri on his argument that UC Boulder’s single-investigator process deprived him a “hearing” with a neutral decision-maker. The court was persuaded that a neutral arbitrator would reduce the risk that a party would be erroneously found responsible. Lastly, the court also sided with Messeri that the University’s failure to provide him with the identity of a witness also could constitute a due process violation. On all of these critical procedural issues, the court ultimately concluded that a jury should decide whether the University violated Messeri’s constitutional rights.

The University won on a number of other procedural issues and the court declined to find that the procedures used by the University deprived Messeri of any liberty or property interest in defiance of his due process rights. Messeri argued unsuccessfully that the investigators’ failure to conduct independent interviews with Doe and their reliance on recorded police interviews violated his procedural due process rights. Yet, the court was unpersuaded and held that this was not a procedural due process violation.[2] The court also held that Messeri failed to produce sufficient evidence to support his claim that the University treated him differently on the basis of his sex throughout the entire process.

Key Takeaways:

  • OCR regulations are not the only source of a cross-examination requirement. Courts around the country increasingly look to the Sixth Circuit’s ruling in Doe v. Baum to hold that cross-examination is a due process right.
  • Having a neutral decision-maker who is separate from the investigator enhances the due process protections of the parties by ensuring separation of roles and neutrality in both the investigation and hearing phases.
  • Remember – no evidentiary surprises! Respondents are entitled to know the identity of all witnesses. We see this requirement incorporated into the 2020 Title IX regulations, as well.
  • While the court here was unpersuaded that third-party interviews amounted to a due process violation, see Doe v. University of Southern California for a contrary view requiring independent interviews under the California Administrative Procedure Act.

[1] The facts contained in the written summary and the investigation report derived from: Doe’s and Messeri’s audio recorded interview with CUPD, two additional interviews of Doe by CUPD, interviews of six witnesses, a review of text messages, video surveillance footage, CUPD reports, and interviews conducted by Messeri’s private investigator.

[2] The procedural due process claims Messeri alleged included: The University’s failure to conduct independent interviews of Jane Doe; the use of the preponderance of the evidence standard; the Standing Review Committee process; his right to appeal; the University’s instruction that Doe was not required to speak with Messeri’s private investigator; Messeri’s meeting with Simons; the University investigators trauma-informed investigative approach; and disclosure of the Standing Review Committee Members.