The Title IX Rule Change on Cross-Examination is Crucial to Due Process

By George Leef

Secretary of Education Betsy DeVos stirred up a hornets’ nest when she recently proposed a substantial revision of the rules for Title IX cases. Under the rules imposed during the Obama administration, colleges and universities were expected to follow procedures that stacked the deck against students accused of sexual assault or harassment. Those rules were heavily criticized by conservatives and liberals alike. Notably, many members of the faculty of Harvard Law School signed a letter attacking the Obama rules for their blatant unfairness.

Among the changes proposed by Secretary DeVos is to allow cross-examination of hostile witnesses by counsel for accused students. Under the Obama rules, cross-examination was not allowed, under the theory that it was too traumatic for a student who claimed that she had been sexually assaulted to have to face cross-examination by the student she had accused.

That might be the case very rarely, but our sense of justice has always inclined Americans toward making people who involve themselves in judicial proceedings to face cross examination of their statements. The Sixth Amendment says that in criminal cases, defendants are entitled to confront witnesses against them and our rules of civil procedure almost never permit secret testimony that cannot be openly challenged.

There are sound reasons for such rules. We know that people are prone to lie or at least shade the truth and the best way of exposing falsehoods is for opponents to probe witnesses face-to-face. In California v. Green, the Supreme Court stated that cross-examination is “the greatest legal engine ever invented for the discovery of the truth.”

But the Obama-era bureaucrats in the Education Department’s Office for Civil Rights, caught up in the myth that women always tell the truth about sexual assault and desirous of maximizing the number of guilty findings against male students, declared that in Title IX investigations, colleges should not allow cross-examination, either by the accused student or his legal representative.

Under the proposed new rule, the accused student himself would not be allowed to conduct cross-examination, but his attorney would. But that sensible provision bothered the editorial board of the Washington Post.  In an otherwise reasonable December 15^th editorial, they attacked the cross-examination rule because it would allow accusers to be “retraumatized.” It claimed that there are other procedures for asking questions and digging out the truth that wouldn’t be so uncomfortable for them.

At least the Post didn’t say that women always tell the truth. In quite a few Title IX cases where courts have reviewed the school’s finding of guilt, it has turned out that the woman had in fact concocted a story either for revenge or to save face socially. (In their book The Campus Rape Frenzy, authors K.C. Johnson and Stuart Taylor, Jr. recount some of those cases.) But there is no need to “protect” women against having an attorney cross-examine their statements and the other procedures the editorial alludes to are much weaker when it comes to ferreting out falsehoods. Submitting written questions to witnesses gives them time to compose carefully crafted, evasive responses and to coordinate stories. Face-to-face cross-examination is, as the Supreme Court has said, is the best method of eliciting the truth.

Could the possibility of cross-examination by the accused student’s attorney discourage a woman from filing a charge of sexual assault or harassment? Yes, but that seems extremely unlikely if her allegation is true.

What is far more likely is that the prospect of cross-examination will deter students from filing false charges that might be exposed under questioning by an attorney.

In September, the Sixth Circuit Court of Appeals considered the importance of cross-examination in Doe v. Baum and held “If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Competing narratives are almost always involved in Title IX cases and allowing cross-examination will help greatly in avoiding injustices.

Answering probing questions about her claims might be uncomfortable for the accuser, but we must weigh that against the possibility that the accused student will suffer long-lasting damage if a made-up story is believed. That is why the proposed rule change to allow cross-examination is crucial to restoring even-handedness in Title IX cases.