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« The pendulum swings back: Title IX due process at private colleges | Main | Revocation of the 2011 Dear Colleague Letter: Who was it protecting? »

Title IX Approaches the Bench: Cross-Examination in Sexual Misconduct Hearings

Imagine that you are sexually assaulted. I know that it’s terrifying. And, I know that some of you don’t have to imagine. All you want is to be able to graduate without having to see this person again. Imagine that you report what happened to college officials, and after no contact orders, housing reassignments, and meeting with investigators, you attend the hearing to hear what the school you attend will do in response to this person’s behavior. Only first: their attorney will ask you questions, trying to cast you in the worst light possible. They will suggest that not only did you want what happened, but also that you enjoyed it. If that leaves a bad taste in your mouth, I understand. That experience is a known part of the criminal system, where at the end a decision is made about how much jail time (likely not much) will be meted out, but it has been absent from educational processes since the 2011 Dear Colleague Letter. That experience, or something hauntingly similar is likely to be coming to a campus near you.

As soon as September, colleges and universities will need to relearn how to address sexual misconduct allegations under new guidance from the Department of Education. Arguably the most controversial element of this guidance is that colleges and universities are required to allow for cross-examination of complainants and witnesses at a live hearing: something the 2011 DCL argued constituted further harassment towards the complainant. In the proposed guidance, the accused would not be permitted to do this themselves but would have their advisor perform the cross-examination.Experts and advocates for survivors have advised that this is bad practice and may “chill” reporting on campus. Simultaneously, these changes are being heralded by advocates for the rights of accused. Additionally, recent court decisions have added weight to the requirement of cross-examination in cases where the decision comes down to determining the credibility of two differing accounts. In the middle, are the colleges and universities trying to find a way forward that is both fair, and responsive to the needs of survivors.

Prior to Dixon v. Alabama, institutions of higher education acted in loco parentis, and were not required to provide due process when making decisions on discipline. Despite not being state actors, the protections employed by state universities were soon mimicked by private institutions as well. In the decades that followed, student conduct at college campuses became quasi-judicial proceedings, both overusing and misunderstanding legalistic rules and procedures, according to experts. Modern student conduct has evolved into educational processes that aim to educate those found responsible for violations of policy, while maintaining the needs of the community. Cross-examination is not a typical procedure in any student conduct case, as campuses are not meant to be courtrooms. By requiring cross-examination in Title IX cases, student disciplinary hearings risk regressing to the quasi-judicial proceedings of the past. Additionally, while many imagine the cross-examination being conducted by a trained attorney, in most cases the accused are advised by parents, friends, or coaches. As are the complainants, whose advisors ALSO have a right to cross-examine the accused and potential witnesses.

Imagine that you are accused of sexual assault. I know that it’s terrifying. And, perhaps, some of you don’t have to imagine. All you want is to be able to graduate. Imagine that, after no contact orders, housing reassignments, and meeting with investigators, you attend the hearing to hear what the school will do, only first: the father of the person who accused you will ask you questions. 

If that leaves a bad taste in your mouth, I understand.

This is a guest post from Kevin Carmody, Title XI and Civil Rights Officer at Alma College and Ph.D. Student in Educational Leadership at Central Michigan University. 

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