On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.
For now, I want to focus on the critical, and controversial, issue of cross-examination. The ability to ask probing questions of adverse witnesses is a deeply-rooted part of our court system in both civil and criminal cases; in criminal cases, it is a constitutional right under the Sixth Amendment. In sexual misconduct cases on campus, which generally are not in a courtroom setting, the procedural protections available tend to be different. The disciplinary processes at different schools vary considerably, but under guidance from the Obama Administration, cross-examination was discouraged and, if it occurred at all, was usually watered down. For instance, at many schools, a student can suggest questions to an investigator or hearing panel, but that investigator or hearing panel may reframe the question or refuse to ask it altogether, making it much more difficult to hone in on relevant issues. The well-intentioned instructions from the Department of Education, starting with the 2011 Dear Colleague Letter (now withdrawn), expressed concern that forcing accusers to confront the students they were accusing of misconduct and be cross-examined could traumatize them and deter them from making complaints. However, some courts (primarily the Sixth Circuit in the Midwest and state courts in California) have recently held that, at public colleges and universities, it may be a requirement of due process for an accused student to be able to cross-examine an accuser or witness in some fashion, at least when credibility is a key issue (as it often is in these cases).
The draft regulations would significantly change the approaches of most schools, requiring post-secondary institutions to hold a live hearing at which each party and witness would be subject to cross-examination, with a few limitations. (For instance, a complainant’s prior sexual history is generally off-limits.) Either party could request that cross-examination be conducted in separate rooms (through something like Skype), so that the parties would not have to confront one another face to face. Each party would have an opportunity to have all relevant questions asked, including those relating to credibility, and if a decision-maker refused to allow a question to be asked, they would have to provide an explanation. If a party or witness refused to be cross-examined, their evidence could not be considered at all. Since many schools have moved away from live hearings and allowed evidence to be submitted in writing or through interviews with an investigator, they would have to fundamentally change how they make decisions. We have seen many situations where both accused students and complainants have limited access to relevant information, and no way of meaningfully addressing gaps or inconsistencies in others’ statements. That is the core focus of cross-examination.