IN TITLE IX SEX Cases, Cross-Examination Is Now On The Table
For years, under Title IX, a student charged with sexual assault was not permitted to face their accusers and cross-examine them. The rationale by feminists was that confronting the accuser was equivalent to another sexual assault. Recently I was prompted to look at the current Title IX policies of all 40 four-year public universities in the Sixth Circuit. Many public universities in the circuit have implemented Baum however, almost 25 percent of the public universities in the circuit do not comply with Baum.
Implementing Baum
- Twenty public universities in Ohio, Michigan, Tennessee, and Kentucky comply with Baum.
- Five schools comply with Baum but do so grudgingly. Of these five, the Eastern Michigan policy stands out.
- Three schools allow cross-examination, but their approach (depending on the facts of the case) might violate Baum
Amidst this reluctant embrace of Baum, one university stands out. Ohio University allows cross-examination with the maximum amount of choice, by either the accused student or his advisor. Ohio is the only university in the four states of the Sixth Circuit to implement Baum in a manner that ensures the accused student has the most meaningful opportunity to defend himself.
Limiting Cross-Examination
- Five universities purport to allow cross-examination but place such significant restrictions on what can be asked or even whether a hearing will occur that they effectively nullify the right.
Defying Baum
- Nine universities violate Baum by using procedures that have a hearing, but only with submitted questions to the panel chair (who can ask them or modify them at all) for some or all witnesses.
So, what’s the bottom line? Many universities in the Sixth Circuit have implemented Baum without apparent difficulty. The only significant pushback among schools compliant with Baum has come at the University of Michigan, and there, the resistance has focused on the university’s refusal to adopt a compromise (questioning by lawyers) that would be preferred by both sides.
Perhaps previewing Brett Sokolow’s prediction that universities should find “clever workarounds” of the sections of the proposed Title IX regulations that provide live hearings and cross-examination, several universities have developed restrictions on the right to cross-examine.
mindingthecampus-KC Johnson
