TITLE IX Has a Cross-Examination Crisis. Comments From University Leaders Show Guilt-Presuming Sentiment
The Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Until recently, that lesson had failed to permeate the nation’s Title IX tribunals. Obama-era guidance “strongly” discouraged direct cross-examination between students accused of sexual assault and those making the accusations. Nearly all colleges and universities went further and prevented lawyers or advocates for the accused from asking questions of witnesses. Only in the last few weeks have academic leaders explained in detail why they support denying accused students who face the most serious offense to come before most campus tribunals—sexual assault—the procedural protections associated with cross-examination.
The comments from higher-ed leaders require accepting one assumption: that all, or nearly all, campus allegations are true, and so a system primarily designed to test the veracity of each individual claim is not only unnecessary but counterproductive. This guilt-presuming sentiment veers dangerously close to deeming a college’s educational goals consistent with sacrificing innocent students to pursue a greater good. But as one federal judge has noted, a university’s mission is stymied if, through unfair procedures, the school “ejects innocent students who would otherwise benefit from, and contribute to, its academic environment.”
A federal court ruling already requires cross-examination in public universities in Michigan, Ohio, Kentucky, and Tennessee. (The ruling also maintains that private institutions denying cross-examination risk Title IX liability.) And a series of state appellate court rulings have prompted California universities to institute hearings with some form of cross-examination. The record in these five states suggests that, even if the DeVos regulations are adopted, universities will still try to subvert fair treatment of accused students in the Title IX process.
mindingthecampus.org KC Johnson
