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How Would Cross-Examination Under the Department of Education’s Draft Title IX Regulations Work?

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 The well-intentioned instructions from the Department of Education, starting with the 2011 Dear Colleague Letter (now withdrawn), expressed concern that forcing accusers to confront the students they were accusing of misconduct and be cross-examined could traumatize them and deter them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.

One important wrinkle in the regulations, recognizing the potential for the process itself to become traumatic, is that the cross-examination is not, and cannot be, done by the students themselves. Instead, the cross-examination is carried out by each student’s advisor, which can be an attorney or other person of their choice. If a party does not have an advisor, the school is obligated to provide “an advisor aligned with that party” to conduct the cross-examination. If a student has the resources to hire a lawyer, can find pro bono counsel, or if the school provides participants with attorneys (as a very small number of schools do), this makes good sense. Attorneys are trained in techniques of cross-examination so that, one would hope, the questioning would be effective, respectful, and helpful to the truth-finding process. A trusted faculty member, friend, or family member can also fill this role, perhaps with varying degrees of effectiveness. But if the school is providing an advisor to conduct the cross-examination, what obligation does the school have to provide someone who will do the job effectively? Since the advisor would have to be “aligned” with a party, presumably the advisor would owe the party a duty of loyalty – but typically one would expect an advisor provided by the school to be a school employee, with an interest in protecting the school from liability. And as the regulations do not seem to set requirements for an advisor to have particular training or experience, schools could provide advisors unfamiliar with the process who can do little more than read questions off a page. Whether that would comply with the regulation or be a violation of its letter or spirit would likely be a subject of litigation. The safest course for schools would be for them to provide all parties with independent attorneys to serve as advisors, but that could be a significant expense, especially for small institutions. Hopefully the Department can consider and clarify these issues in any final regulations.

Having cross-examination available would greatly improve the fairness and reliability of the process for students who go through to a final hearing. However, there are drawbacks and pitfalls for all students involved. Complainants may be reluctant to go through with a lengthy process in which they will have to be questioned by an adverse attorney or advisor. Witnesses may be less likely to come forward or get involved if they have to meet with an investigator and face cross-examination at a hearing, rather than just sending in a written statement or having a single interview with an investigator as has been the practice at many schools. And accused students, who are frequently facing allegations that could be considered criminal in nature, have to choose whether to defend themselves by testifying under cross-examination, which could become evidence in a criminal trial, or remain silent and give up any ability to tell their side of the story. This is strong medicine for everyone involved. I expect that, because the draft regulations permit and encourage informal resolutions of complaints, schools will develop alternative paths in which, if both parties agree, the full panoply of safeguards and cross-examination will not be necessary. If that happens, these regulations could lead to more flexible approaches to complicated situations, which could produce more productive resolutions to complaints. But if there is no agreement, the regulations seem to envision a long, drawn-out, complex process – but one that will hopefully lead to more reliable results.

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