rules for clarion this specifically state that council cannot participate the council can act in them and buys the role only but cannot ask questions cannot make argument cannot give statements opening statement to punish him for his entrepreneurial activity with the test and now open is that you must take advantages then each of the processes that are provided in a civil proceeding i'm less those processes are unavailable or patently inadequate and i guess you would have to say that there are patently inadequate here because under the university's internal rules the attorney could not be there or they could not question the accuser here however i think it's a no seventeen on page twenty six of the answer would be if they said they would have done that they would have allowed the attorney to have been there and would have allowed the attorney to have ask questions i don't know if that's the case or not was there any indication given before this hearing in the summer of august twenty third team that an attorney could be present your honor in fact i'd say there is nothing in the record that supports the idea that counsel could have played an active role in the hearing instead of mr haynes in fact there is an indication in the record and we cite in our brief that the administrator told my client's mother that attorneys were not even allowed to be present at the hearing but if you look at the think your honour's hit on the important point in our been on page one of eleven of the of the alvin case they talk about the fact that in alvin the plaintiffs said that the procedures if complied with would appear to provide due process they even a size that on page one eighteen were the plaintiff conceded in that case that the process was constitutionally adequate to push the due process violation on the face of the cleary and so the due process violation on the face of the documents and i think the low hanging this case your honor is the fact that clarion does not provide in its process any opportunity for an accused student to cross examine adverse witnesses the victim the rules are very specific in this case that they would not have been permitted to ask any questions of all of the person in fact a good record in its opinion one of the aspects of the opinion that we like so specifically on page ten of its opinion that the hearing procedure been allowed and what wouldn't well that's that's not correct that's just your honor if you look at page five hundred fifty one of the joint appendix on page seven ninety eight of the joint appendix and on page six thirty nine or joy depend if you have depositions in those depositions three witnesses who work for clarion testified that mr haynes would not have been permitted to cross examine the alleged victim even if he had been present there pelleas do not directly supported any evidence to the contrary never actually policy which is the page one seventy six the joint appendix it says explicitly that the complainant and be accused student will not directly ask questions of each other as not to perpetuate a hostile environment any further would have allowed questioning of the could have questioned the accuser and in fact she was asked questions at the hearing there's nothing to indicate that at all i think in the record your honor and the problem we have here then is that you've got a record where people say we're not going to allow this questioning to happen we're and so when you get at what you want to balance what are you seeking families are you saying look we we should be in this case and tell them that they have to have what you would perceive as a constitutionally adequate hearing which you would include the right to preserve witnesses course examine oh you know sort of a court type hearing which you then have a complete remedy yes yes your honor i think what what the ultimate relief in this case would be in order vacating the disciplinary finding in this case and that would be on due process ground so it would not prohibit the school from going back and having a constitutionally adequate heari injunction injunction like that or an open ended prohibition like that but what you have here is a situation where you have an open criminal you have two important aspects of this case one you have an open criminal investigation or open charges there that preclude the student from testify the second thing that factors into this case that may not be present in other cases is he's no longer present on campus he was given an interim suspension and we're not suggesting right here to this court that that would be inappropriate so you have to then when you start weighing those factors say what is the cost of the school given those situations so i'd say given those unique facts your honor yes if you have a situation where the student is not on campus and the court can't and the school can delay it without any harm it should do so and let me suggest that they working he may want to pursue graduate school in the future he's indicated it's not what are you looking for what he wants to do what we're looking for your honor is for this to be remembered to the district court and eventually that his record be clear and the key it's not in the record i can suggest that a court that having a finding like this on your record in answering yes back question in describing a title nine violation makes it extremely difficult to get into any graduate program going forward not in the record i can give you the court my own experience of dealing with many of these cases typically the question from graduate schools and for bar examiners is have you ever been subject to discipline at the school so he would be able to answer no in that situation if this discipline were vacated answering yes to that question as i indicated are you subject to discipline at one point he was subject to discipline even if it disappeared wasn't meted out who was he other school this is very typical your honor of school processes that were in place at the time and that are still in many instances in place with one exception the school processes especially in the public schools tend to have this type of hearing process and i see i'm out of time if i make readership if i may consider the the schools tend to have a judah kotori hearing where the person is able since the decisions from the sixth circuit dealing with confrontation most schools and criticism that cincinnati and in the last few months most schools now permit some form of cross examination so the process that you have here where we suggest there was no opportunity for cross examination is not present in the other cases as well what kind of cross examination would you want or would you think would be sufficient from your side of the oil well there's two ways answer that you're out of the first is dealing with subject matter and the second is the manner of the cross examination we would suggest in terms of the first that cross examination should be allowed on any relevant fact  one of the challenges you have in these cases is that you have no rules of evidence in you don't have a hearing chair who may be trained in the law to limit that but clearly you can't go into things that would typically be precluded by rape shield laws or anything like that but certainly there should be the opportunity to cross examine the person on the facts of the case and also an information that would not be in in the investigation in the case and what i mean by that is a number of times students who allege victims of sexual assault receive accommodations or benefits from the school as a result of that allegation this may affect the credibility and it's typically not included in the investigative reports so cross examination is necessary mean you're right i did it would seem to be really difficult if you were to have the accused questioning the accuser it would be very awkward it wouldn't be much better to have an attorney available and able to  i do have the belief that attorneys know where the lines are what to ask what not to ask and are frankly more likely i think to do so in a delicate respectful manner than someone who's not trained at speculation i know but cross examination to occur by britain questions so the person would write down the sewer and write down the questions submitted to the hearing panel in their hearing panel would then read it to to the alleged victim it may depend also in that situation whether the alleged victim i actually present in the room and number of schools allow the alleged victims to appear by teleconference or video conference or a thing like that which eliminates that as well i don't think you have to reach that question in this case to decide whether it's appropriate to or what man of the cross examination has the case take i do think it's a it's probably enough for you to understand that other schools have adopted processes that make it not a binary choice where you're a district court why did structure should we give this district court what should it do i think the district court should if this is on summary judgment of the the three fact three facts which of the three facts or the three factors on the mapping stats and so the court would have to hear testimony about what procedure was available the possible benefits of that procedure the possible that there was no possibility of cross examination available for mr haynes so it's possible given what this court would say at that point that final judgment could be entered just on that point alone good afternoon may please the court my name is howard hopkirk i am a senior deputy attorney general for the commonwealth of pennsylvania i represent clarion university its former president karen whitney and other named university officials due process requires notice and an opportunity to be heard clarion university provided mr haynes with both that good good will the due process required the upper to cross examine the accuser so oem to the extent the district court said that that was not allowed that's actually contradicted by the record and i think  was pointing if you look at one fifty nine eighty and one seventy six a couple of the record where it talks about not being allowed to directly ask questions of accused of the accuser but that this would be allowed someone else could ask questions and i think it was that conveyed to me i thought the university policy internal policy said that no one could cross examined at this hearing and i what i read your foot no seventeen saying is that they would have made an exception in this case is that correct so i mean there's a general rule against having other people so if there's a general rule but then it says an exception was that exception if it was it looks like it was not conveyed to the district court because the district court apparently thought otherwise so was it something to convey to them this is the general rule is that there is no cross examination of the accuser however in this case we didn't allow an attorney to be present but did ask questions it's not just in this case it says in some cases an exception can be made one and that's where you get to the problem here here's my specific question in this case was notice given to either mr haines or his counsel that someone besides mr haynes could be present at this and that he wore that person could ask questions so i would say not be on the rules i don't think so in this case the answer is no but he was not told he couldn't and there's a general rule and we follow general rules until somebody tells us there's an exception but you have to if you're going to give an exception you have to give notice of the exception but i'm asking you was notice that you have been the exception is in the rule the written rule so it was notice given that the exception would be followed five and it goes on to the next page to write to the president and hear all information and evidence related to the alleged quietly and ask questions of all involved parties including witnesses and the accused students the complaining and the q students will not directly ask questions of each other as to not perpetuate a hostile environment any further than the student bill of rights and actually the specific point i'm referring to is in a different section but it provides that the that the university will allow in some situations to have an advisor to have an attorney and have them ask the questions if you hear that i think if you make a difference that it's a public university as opposed to a private university all the full gamut of due process is going to apply to clearing university because it is a public entity right so what i mean we we don't argue any of that  just in general there's not an exhaustion requirement but if the if the fundamental cause of action is to process then that's going to be a component of being able to prove have looked at it yes and it basically says that when you are accused of something serious the need for cross examination as is at its most critical this obviously is a very serious accusation and if you look at the general rule there is no cross examination allowed it might have been allowed had in this case perhaps that is shown out but we didn't know it no one knew that before the hearing and in that case cincinnati university of cincinnati why would we not follow it and say that there is a right of cross examination not by the by the hughes but rather by an attorney or perhaps as your opposing counsel is noted by at least asking certain written questions that would be noted before hand so i would agree if the record actually showed that he was denied the r through himself or or his attorney to cross examine but then you have the proposition well if the procedures are just a sham then maybe you don't have to participate but i really i'm going to hang my hat idea that there was the possibility the possibility of cross examination it's contemplated by the rules and he had an obligation to at least show up and pursue that and if if he was allowed to do that to check to that and you know bring the the tribunals attention to the fact that the rules did contemplate this and you know if they'd said no we're not playing your attorney and we're not letting you ask questions we're not doing any of this well then that would be a different story but instead of actually having a factual basis to say that they want to speculate and say oh that's what would happen i need to specify identify the rule for l on one fifty nine of the appendix is under formal hearings number four talks about an opportunity for submission of written physical and testimonial evidence and for reasonable questioning of so that's i mean that's another you know part of the rights under the whole policy of clearing university  it's i can't find the exact section of it it's i believe it's in volume two of the appendix those are the rules you're relying on to suggest that cross examination was a possibility and he asked my understand your argument correctly i mean i think there are there's one place where you know it  talks about the right to question witnesses and then there's specific information about sexual salt where you know well maybe the accused wouldn't be able to directly ask questions quite well some other mechanism would be a and i think you have to let the university conduct or have a chance to work that out and let that happen and not just say that would just stop you know out and i think if you send the case back you're asking the district court to have a trial on what might have happened or what you know instead of what actually university conduct or didn't ask any questions at all did that  you had appraisal taisha by mr shafer and then you had a some statements by ms austin with the purported expert but there were no questions of any of them and then also you had the the the person who queues are the one who claimed that you know she she was raped that she testified there were no questions asked of her there were no questions asked of anyone to my knowledge i believe that's correct but that just sort of highlights the idea that the accused needs to show up and we ask questions that the cincinnati case universe is this in any case talks about in that case that it appeared that or seem as if the board was given permission to ask the questions we don't know if the board we do know that the board here asked no questions whatsoever and it gives the impression that the rights that might have existed in order to challenge a particular statement of anyone were were were not there now the problem you have here is you got it put yourself in the position of the criminal attorney for m haynes if you're his cruel attorney you're going to say ewing go on to that because you're going to say that that hearing in december because you could say something that could incriminate you or be used against you in connection with a criminal prosecution ultimately the criminal prosecution was dropped but i can imagine a criminal attorney saying to his counsel you know no problem once you go i think he could have said we're going to go together you're not going to say anything if they don't let me say talk on your behalf well we're going to object and we're going to leave or or or whatever but to say that he was denied due process because you know maybe that was the sensible thing for him to do as far as not testifying but it doesn't mean that he was denied due process and you have in ministries of proceedings all over the place where the person is subject to criminal sanctions and it doesn't filing their fifth amendment rights to do that what about the the conjecture or the opinion statements testimony if you will of mr scherer with regard to what he believe happened who he believed etc he went beyond to just the facts didn't so one thing if mr haines his attorney had been there maybe he could have objected and and had that straightened out so that's another problem with not showing up the other aspect he really was in the position of the prosecutor for this case he was not the fact finder he did not participate with the that's interesting because i thought he was the investigator for the case if you're saying he's the prosecutor in the case that's really not help with your position whatsoever well it's an administrative proceeding he's he's an investigator slack i mean he's the one his normal the normal function of him or someone in the same position was to present the university's you know side of the case it was not presented as this completely neutral thing and it would be mr haynes through his attorney perhaps who could bring the other side of the case one of her university side of the case before the airing i would have thought  but i mean the university had to bring these charges forward so ok so you're to think wishing the poor from the university yes your honor  the expert here ms os what was she an expert on so she worked for a sexual abuse clinic counseling mean i think i don't know what makes her an expert on other than training with respect respect to how one deals with these types of situations and if you look at the transcript of the airing the main thing she seemed to have knowledge about was that victims of sexual abuse often don't lay reporting that that that seemed to be the crux of her testimony i would just say you know that she can't pick up a again if mr haines his attorney had been there he could have said wait a second i object what would her qualifications but because no one was there she was allowed to go forward i don't think you would have even  in a court of law where the the one party failed to jacked to an expert and they actually weren't qualified where you'd say oh we're going for the verdict out now because you know they didn't participate or they didn't object and that's what that's what they were indicating in footnote seventeen of their brief i would note without any kind of reference to the record in there i mean this is an affidavit for summary judgment so they could have submitted an affidavit from someone saying had this hearing gone on i would have allowed a b and c it's very notable they don't do that and remember we're on summary judgment so we're entitled to say had it gone on i guess every case is different every case is unique so so some have to be so in order for you to draw me say two things one in order for you to draw the conclusion that they want you to drop a quick note seventeen you have to speculate significantly about the record that is empty and there's nothing to support  way there's no doubt but i think in order to draw the conclusion that they would have allowed this process as they described there i think you have to make a number of leaps that are not reasonable first you have to assume that the school is going to they're going to change their traditional way they handle cross examination and you've got evidence in the record suggesting they're not going to do that but let me not lose sight of the context of this as well because you have a context where you have an investigator who is working as a prosecutor a neutral investigator despite what he says he says it is deposition has its role you have a situation where you have a college president who has promised the alleged victim that they're going to kick him out of school and then so you've got a situation where you've already lined this thing up in a certain way that it's going to end up with mr haynes being expelled from the school and so they want you to then say that given all this context we're doing they're doing everything in their power to come down against mr haynes to throw him out of school whatever minimal record they can have to do it that they're going to all of a sudden decide because his advisor shows up with an attorney who's not even open up his mouth at the hearing but that he's to be allowed to open up his mouth of the hearing and the school is going to say sure we're going to give you all these that to due process of protection to spite everything we've done in this case before i think that's not a reasonable inference to draw especially in a summary judgment standard i think in a summary judg standard you have to stick with the record that we have the me see if i just get the facts out my understanding is that the university policy says quote the complain and accused didn't will not directly ask questions of each other as not to perpetrate a hostile environment any further so there's no questions between the accuser and the accused but as for questioning by an attorney it clearly is procedure set a baseline rule that an attorney folks may only consult and interact privately with the student that is persuaded that the attorney represents with exceptions for active attorney participation on a case by case basis and so the question then is if there is an exception in a case by case basis don't you have to show up at least with the attorney and say ok want this to be the exception i think this gets back to what i did to the first question i was asked which is about the alvin case and the album case says that if you have a patient we inadequate inadequate process you're not going to have it well there's two ways this process is plainly inadequate the first is as we've been talking about for the past half hour is the lack of confrontation and we can tease these rules out one way or another and go back and forth but i point your honor to the excerpts of the depositions we cite in our brief where the administrator saying the questioning would be by the board there wouldn't be any questions allowed by mr haynes but the second way you satisfied it's predicated on the facts it was never an ask there w allows for play in the joints to have play in the joints it's almost like your woody allen line you know showing up is eighty five percent of the game not that he had to show up and be  d because you wouldn't want that for your criminal lawyer having your counsel a riot question but showing up for the purpose of determining exactly what the rules of the road are whether that what the process is we don't know if the process will really inadequate because we never got there full well that the challenge is to even answer that your honor the first challenge is that you don't have a situation like we have in every other area of the law with a person could be actually represented by counsel so you have a very dangerous situation for a college student to go in and say he's supposed to ask for for whatever accommodations that they would where again the student is being asked we keep being told this is a not a criminal process is a true finding process this is the informal process and then you're trying to hold the student to formal objections and say you have to submit a letter perhaps or something else to do that the second evidence of bias on behalf of those who actually did the deciding that there is clearly some indication of bias on behalf of mr shaffer well there may have been some statements by the university president who was was not on the sport that might indicate a leaning one way or the other but i don't see in the record anything one way or the other pertaining to those who actually made the decision i suggest to your honor two things first you have mr schieffer asking acting as the advisor to the board so when they have to deal with the questions of should we provide more process to this student he's the one who's going to give them advice on the question was never put to the board because it was never a request for more process there was a drought and i'm not i'm i'm not i'm not trying to challenge a point anyway i'm trying to say that alvin says that you don't have to make that ask alvin says if this if the situation or the process is really an adequate you don't have to make that ask you're not required to exhaust that remedy raise those issues and to answer your honest question about the decision maker it's true that the decision makers were members of the faculty him or not mr schaefer or were not and students there to hurt some student yes throughout it but i think included in that presumption in your honour's question is that this was a meaningful hearing done in the meaningful way and that these decision wasn't already lined up that it was going to go certain way i was reminded of you know my young daughter went to a birthday party at a bowling alley and at that bowling alley they had these inflatable things that they put over the gutters of these little bumper so that no matter what the kids did they were going to roll down that ball the ball the ball down the blade it hit the pins and so let's what you have in this case where you may have had people who appeared to be neutral decision makers but you had the system set up but from the bottom with mr schaper and from the top with the university president that they were inevitably going to find that they were that this student was responsible and they were going to be honest that we do we just you have in your case is that you have to show up and make the challenge in order to preserve the claim that there was a lack of due process because there is a process set up in it does allow for persons to ask for an attorney to be present to have ask questions they were told that that had been asked would have been granted and so when you look at what i just read to you from one seventy six to one fifty nine to university policy how can i say that that process is and has is on its face inadequate my response your honor is the two ways a just described to you and  don't want to repeat myself that that would suggest that there's nothing in the record to suggest there would have been confrontation there is something in the record to suggest there would not have been confrontation and second that you have the record to suggest that it would not have been allowed any question you forty and forty one we have excerpts from the record where one of the administrators said that both parties can have a chance to address each other and answer questions of the board and there's other suggestions in there that would be the board would have the ability to ask questions but not the students in there but then that would put it squarely within the process in the university of cincinnati case would would it not if the board could have a process that the sixth circuit found was inadequate constitutionally