Title IX Has a Cross-Examination Crisis

The Courthouse

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. These arguments appeared in response to Education Secretary Betsy DeVos’ proposed Title IX regulations, which would mandate live hearings with cross-examination, with questions asked by lawyers or advocates for the students, in all sexual misconduct cases.

[The Campus Rape Culture That Never Was]

After several technical glitches, the comment period on DeVos’ proposed regulations closed last week. Comments submitted by college or university leaders provided unintentional insight as to why so many accused students have had to go to court to get fair treatment from their schools. More troublingly, the comments implied that most university leaders see promoting safety or encouraging reporting as a more important function of the Title IX adjudication process than determining the truth of each allegation.

74% of Colleges Don’t Guarantee Due Process in These Cases

University leaders offered three core arguments against DeVos’ cross-examination provision.

  • First, they contended that it would deter reporting by campus victims of sexual assault. Yale President Peter Salovey and University of California chancellor Janet Napolitano were the most prominent figures to make such a claim; sadly, so too did the interim chancellor of my own institution, the City University of New York. Academics who rely on evidence to substantiate assertions instead offered a highly controversial position—that fairer procedures would cause fewer victims to report—without any statistical data to support it. While perhaps useful as a scare tactic, it’s difficult to take this line of argument seriously. Even assuming that allowing cross-examination of accusers might deter reporting, such a concern could not justify preventing accused students or their representatives from cross-examining other witnesses or the university investigator, as virtually all colleges do.
  • Second, academic leaders faulted DeVos for micromanagement. Several higher-ed comments claimed that alternative adjudication systems would work just as well. For instance, a group of private colleges and universities, including Harvard, MIT, and Williams, submitted a comment praising the single investigator model, in which one person serves as prosecutor, judge, and lead detective, arguing that “schools have operated this way for centuries.” (The Obama-era rules that transformed how colleges handled campus sexual assault cases dated from 2011.) Unmentioned was a federal court ruling against another of the signatories, Brandeis University, citing the “obvious” dangers “of combining in a single individual the power to investigate, prosecute, and convict.”

[Four Reasons to Support the DeVos Title IX Rewrite]

  • Third, leading educators deemed cross-examination to be harmful in and of itself. Boston University President Robert Brown’s “one overriding consideration” in opposing cross-examination was whether the regulations would “promote student safety and well-being,” as if fair procedures somehow harm students’ well-being. University of Michigan President Mark Schlissel echoed Brown’s sentiments. Contending that “aggressive, adversarial questioning is more likely to distort reality than enable truth-telling,” Suzanne Goldberg, the architect of Columbia’s Title IX procedures, appeared to challenge the idea of cross-examination in any sexual assault proceeding. These viewpoints suggest that the crusade against fair procedures for the accused in sexual assault cases won’t be confined to campus.

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.

Yale’s Salovey, for instance, asserted that adopting DeVos’ proposal would “not make the process fairer for anyone.” This claim is nonsense: the proposed regulations clearly would have made the process fairer for the more than 400 accused students who have filed lawsuits since the Obama-era policy change, including five students from Yale.

The Association of American Universities, which includes 62 of the nation’s leading research universities, more subtly echoed Salovey’s point. It submitted a comment contending that a process envisioned by the regulations “likely undermines other educational goals like teaching acceptance of responsibility or providing avenues for respondents to make amends.” But if the accused student did nothing wrong, why would he need to make amends?

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.”

[Lashing Out at Psychologists for Messing with Men]

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.

President Schlissel, for instance, conceded that his university had to comply with the court order while maintaining a belief “that the Sixth Circuit got it wrong.” Michigan’s resulting policy invests considerable authority in both the pre-hearing investigator to prevent the accused student from introducing evidence in his defense and the hearing officer to prevent cross-examination of at least some witnesses.

The University of California’s Interim Title IX coordinator told the Los Angeles Times that the system would not allow for direct cross-examination “unless and until we are absolutely legally required to do so”; the California State University system’s deputy general counsel begrudgingly accepted the courts’ authority even as she made clear her preference for deciding sexual misconduct cases through private meetings with each student, rather than hearings in which the accused student would have a chance to defend himself.

Ironically, academic leaders denouncing baseline procedural protections for accused students only proves the need for DeVos’ regulations. The comment process confirms that, on their own and under their current leadership, most colleges and universities are not capable of fairly handling Title IX cases.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

8 thoughts on “Title IX Has a Cross-Examination Crisis

  1. In People vs. Wesley a New York trial judge wrote that “if DNA Fingerprinting works and receives evidentiary acceptance, it can constitute the single greatest advance in the ‘search for truth’ and the goal of convicting the guilty and acquitting the innocent since the advent of cross examination.” A recent case at Clarion University suggests that Clarion cares little about DNA, and the Association of American Universities shows little regard for cross-examination. A reduction in the kinds of exculpatory evidence that are offered may make the Title IX tribunals faster but not fairer.

  2. I have just read the statement by the Association of American Universities. In the preamble of several paragraphs there is one half-sentence that deals with the rights of the accused (“and ensure all students involved have access to support services and fair and equitable processes”), and even this clause applies as least as much to the accuser as to the accused. It decries a one size fits all approach, yet the post-2011 system mandated preponderance of the evidence as the standard. Its view of the participation of lawyers and other aligned advocates is entirely negative (“unnecessary contention and disruption of the proceedings…”). It also suggests that universities be given a wider latitude in what they investigate (“For example, if the conduct does not occur within a program or activity but may affect a student’s education, then the university should be empowered to investigate”). This last issue looks dubious in light of Yale University’s conduct toward Saifullah Khan. Given this example, would it not be better to circumscribe how far universities can go than to give them free reign? Reading the statement from the Association of American Universities leads one to believe that essentially no thought was given to the possibility that an accused student might be innocent.

  3. The college administrators who are against cross-examination should be asked whether or not they favor cross-examination in criminal trials and to explain their reasoning.

  4. There is no justification for any college campus having pseudo-legal hearings regarding criminal accusations. Note how college administrators defended themselves through lying. Lying has always been central to campus rape-hoax culture and rape hoax culture in general, most notoriously, the myth whereby only 2% of rape accusations are hoaxes. The real number is more like 46%.

    1. There is also a lot of situations where boy and girl get drunk out of their minds and wake up in bed the next morning, with neither really remembering much of what happened nor even where their clothes are.

      It’s called an “alcoholic blackout” and chunks of their memory of the prior night are simply missing — not vague, but simply not there. And while we aren’t supposed to mention this, there is no small amount of illegal drugs involved as well. All kinds of stuff, to the point where drugs are actually a bigger problem than alcohol on most campi.

      So what is the intrepid university administrator to do? I once had a female student thinking she’d been raped because her underwear was on backwards, or something — someone else had dressed her and hence she concluded she’d been raped. Turns out that 2 of my *female* RAs had found her, face-down in a snowbank, in the rain — and somehow managed to get her up 3 flights of stairs and into dry clothes — with her remembering none of this.

      That was simple to solve — I told her to thank the other young ladies for not leaving her outside to catch pneumonia. Other situations aren’t so simple — and Mens Rea comes to mind as well. And in most of these situations, there isn’t even confirming medical evidence that anything even happened at all.

      But if one presumes that all men are rapists and all (non-lesbian) sex constitutes rape, then it becomes quite simple — if he’s male, then he’s guilty. And a lot of really bizarre findings actually make sense when one realizes that the people making the findings actually think this way….

      The underlying problem is the “hookup culture” where casual sex with total strangers is considered perfectly acceptable. It doesn’t help that young women are often attired in a manner that would make their mothers scream if they knew about it — “Glitter Parties” come to mind, all the young ladies wear is the glitter they have sprinkled on their bodies. Throw in the alcohol and the drugs and it becomes a true quagmire….

      But we aren’t allowed to mention any of this….

  5. I didn’t read the article because they all say the same thing.

    The man-haters want to exempt accusers from testifying and being subject to cross-examination because they will be “traumatized” and “re-victimized” by the process.

    Any re-traumatization or victimization applies equally to a man who has been accused, and, 100 times more so for a man who has been falsely accused.

    Their “reasoning” is the equivalent of saying that since men are guilty, they don’t deserve due process.

  6. ” More troublingly, the comments implied that most university leaders see promoting safety or encouraging reporting as a more important function of the Title IX adjudication process than determining the truth of each allegation.”

    It’s worse than this — they don’t care about the truth of the allegation because they are worried about a second (future) allegation being made against the same student and having to explain why they didn’t expel him “the first time.”

    It’s the concept of “risk management” and the desire for zero risk — and hence it makes sense to get rid of any accused male, regardless of facts, so as to be protected against the possibility of him potentially doing anything in the future. It’s so much safer to replace him with someone else.

    Administrators are doing the same thing with allegations of mental illness, no matter how spurious — in both cases, the advice from the legal consultants is “why take the risk”?

    And it isn’t like they can be sued — not really as state laws and the 11th Amendment set ridiculously low limits to damage awards, so low that it really isn’t worth anyone’s time to pursue what inherently will be a complicated lawsuit. So they get away with this.

Leave a Reply

Your email address will not be published. Required fields are marked *