Cross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.
Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.
In practice, particularly in the Northeast, my experience has been that colleges and universities holding live hearings are now very much in the minority. Those that do hold hearings typically permit, at most, written questions; the parties give the questions to an administrator running the hearing, who chooses which questions to ask. They may have to submit the questions in advance, and may or may not be able to propose follow-up questions. But at most schools, there is no hearing—just an investigation by an administrator or outside attorney who interviews the parties outside of one another’s presence. (Although recent First Circuit case law suggests that there is at least a limited right at public institutions to some form of cross-examination, my experience is that many public as well as private institutions still rely on the single investigator model.) The regulations’ requirements with respect to hearings will impose far more uniformity and will totally upend the current practices at many schools.
The new regulations require post-secondary institutions (though not K-12 schools) to hold live hearings. At those hearings, each party’s advisor can ask the other party, and witnesses, questions. The questioning must be conducted “directly, orally, and in real time,” ending the practice of having students write questions that are then asked by the hearing chair. (Other practices commonly intended to make complainants more comfortable, such as permitting the parties to be physically in different rooms or placing a barrier so that they cannot see each other, are explicitly still permitted and, if requested by either party, are required.)
Per the new regulations, questioning must be conducted only by the parties’ advisors, and never by the parties themselves. Regulations already in effect since 2015 under a different federal law, the Clery Act, provided that each party is entitled to an advisor, and that the advisor can be an attorney, but schools were historically permitted to restrict the advisor’s active participation in hearings or interviews; quite a few school administrators have voiced their expectation that our role is that of a “potted plant.” In practice my experience was usually that we were able to be considerably more active than that, and that having an attorney made a big difference. This was especially true if the school held a hearing, where we were able to advise clients about what questions to request that the hearing chair ask (and, just as important, to advise what questions not to ask) and to help clients to muster and present their own evidence.
The new rule significantly expands the role of the advisor. While as an attorney I welcome the chance to take a more active and helpful role for my clients, as a policy matter I have to be concerned about how the rule will affect those students who are not able to afford attorneys. Again—I think that it already makes a big difference to have the help and advice of an attorney during a live hearing or an investigation. Now that the advisor will be able to cross-examine witnesses, the advantage of having an attorney will be far more significant.
A party who can’t afford an attorney can have someone else—a friend, a professor, a parent—serve as an advisor. But an advisor who is not an attorney does not have a legal privilege with the student, meaning that anything that the student shares with them is information that the advisor choose to share, and that either the student or the advisor could be forced to share in any later court case. This is a huge concern in any case where the respondent could face criminal charges related to the allegations against them. There are also many circumstances in which it is essential for complainants to be able to share information confidentially. Many students currently choose to go through hearings without an advisor if they fear the reputational harm of sharing the allegations against them with their friends, family, or teachers.
If a party does not have an advisor, the school is required to provide one for the hearing itself—but that isn’t a complete solution. It is fundamentally hard to imagine how a student could work effectively with an advisor that they have not chosen, do not know, cannot safely speak to freely, and may not trust, to craft cross-examination questions. Not to mention, cross-examination is not easy and some of the strategies for making it effective are not intuitive; for example, it’s often wiser to ask less than to ask more. Inexperienced advisors may well make students’ situations worse at hearing rather than better. Another issue is who ultimately has responsibility for the nature of the questioning; the regulations are silent about what happens if, for example, the advisor and student disagree about what questions to ask.
The regulations also now require schools to vet questions for relevancy; before a question is answered, the decision-maker must determine that it is relevant. The regulations specifically provide, however, that questions challenging credibility are relevant. Policing relevancy may be challenging for administrators who do not have legal training, but some such limit is probably necessary to prevent cross-examination from becoming a tool for harassment of either party. The limits of relevancy are an area that I would expect to see contested, although the regulations do forestall at least one issue that I would otherwise be concerned about by providing that the complainant’s sexual history is generally not relevant unless offered to show that someone other than the respondent committed an alleged assault, or to show consent.
Notably, if a party or witness does not submit to cross-examination at the live hearing that the regulations now require, decision-makers cannot rely on that person’s statements in making a decision. This means that if a complainant goes through the rest of the grievance process, including potentially lengthy and detailed interviews, but chooses not to attend the hearing, her statements to the investigator cannot be considered—and it seems impossible that the respondent can then be found responsible or disciplined, especially given that the regulations also provide for a presumption of innocence. In my past cases it happened often that schools that held hearings did not require the complainant to attend and relied on her past statements (although Sixth Circuit decisions made this practice questionable, at least at public schools). That practice, too, should now be at an end.
For the respondent, the costs of choosing not to appear and make statements at the hearing are slightly different. The regulations provide specifically that decision-makers cannot draw an inference regarding responsibility based solely on a party’s or witness’s absence or refusal to answer questions. That’s an important provision for respondents who might be advised by their attorneys not to make statements because of the risk of facing criminal charges, but I suspect that the current practical reality—that respondents who do not share their side of the story are more likely to be found responsible—will endure.
Overall, the live hearing and cross-examination provisions of the regulation are a sea change that will completely upend current practices. There will surely be significant challenges ahead for schools updating their policies in light of these changes, and it remains to be seen how they will handle the thorny problems posed by requiring parties’ advisors to conduct cross-examination.
This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.
If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.