January 14, 2020
This is the fourth article in a series addressing the proposed Title IX regulations, published by the U.S. Department of Education on November 16, 2018, and intended to address institutional procedures for investigating and resolving complaints of sexual harassment and sexual assault in educational institutions funded by the federal government. As discussed in the three earlier articles in this series, the proposed rules represent Secretary Betsy DeVos’s attempt to pare back the more fulsome requirements of the Obama era, set forth in an April 4, 2011, Department of Education “guidance” (the “Obama Guidance”), which attempted to address sexual assault and harassment on campus without formal rulemaking. This article will focus on the proposed Title IX rules insofar as they are designed to provide for live hearings on accusations of sexual assault or harassment and the cross-examination of witnesses—both very charged issues.
All of these matters will be coming to a head shortly. According to recent press reports, Secretary DeVos plans to move forward to implement the Title IX regulations imminently, and that groups representing survivors of sexual assault intend to challenge the proposals in court. (See L. Meckler, “Betsy DeVos Poised to Issue Sweeping Rules Governing Campus Sexual Assault,” Washington Post, November 25, 2019.)
A. The Varied Processes on Campus to Determine Claims of Sexual Assault and Harassment
Under federal regulations promulgated under Title IX in 1975, universities were and still are required to provide a “prompt and equitable” hearing process to resolve accusations of sex discrimination, which have come to encompass claims of sexual assault and harassment. 34 C.F.R. 106.8(b). However, the 1975 rules did not specify any particular type of hearing process. The universities responded with an array of fact-finding and decision-making mechanisms, falling roughly into two categories: the “hearing model” and the “single investigator model.”
The hearing model adheres in form to a civil or criminal trial in the U.S. court system, but with fewer procedural safeguards and often with less professionalism. A Title IX investigator interviews both the accused and the accuser, questions witnesses, reviews relevant documents and prepares an investigatory charge and/or report. The charge is then provided to the accused and the accuser, and a live hearing is conducted. At the hearing, the accused and the accuser (or their legal representatives) may make statements, call witnesses, submit evidence and cross-examine the other party—though the rules vary by institution. A panel (which is often made up of students and faculty with no legal training) oversees the hearing and may ask questions, and then renders a decision. There is then usually some sort of appeal process available.
For example, Columbia University’s rules for proceedings addressing claims of sexual harassment or assault provide for a hearing panel comprised of professionals employed by the university who receive at least some training on how to conduct hearings. Most of the evidence is presented in written form and submitted by an investigator, with short opening and closing statements permitted to the accused and the accuser, who are never in the same room at the same time but monitor proceedings remotely. The accused and the accuser are entitled to have representatives, who may or may not be attorneys, but they are barred from direct participation in the hearing. The panel may ask questions, but there is no right to cross-examination by the parties.
Some of the issues that bedevil the hearing model are the frequent lack of experience of the panelists, the ineffectiveness of the accused and the accuser as proponents of their positions (unless legal representation is permitted), the cost of legal representation (if permitted) and, as discussed later, the emotional strain on the accuser and the accused in going to trial.
In contrast, when there is a single investigator model, a Title IX investigator (often an attorney employed by the university) will conduct the factual investigation (including separate interviews each of the accuser and the accused), reach conclusions on their own and recommend whether or not to impose sanctions. One advantage to this approach is avoiding a direct confrontation between the accuser and the accused, but this is very much a double-edged sword to much of the legal community, because the single investigator model may deprive an accused of basic due process protections. In particular, the bias or incompetence of the single investigator may render the process highly unfair. However, the single investigator model has become more and more prevalent—in part to avoid subjecting an accuser to a live hearing and cross-examination.
B. Conflicting Views on the Hearing Process and Cross-Examination
Traditionally, courts and attorneys place great value on the use of cross-examination as a method for testing a witness’s testimony and determining the truth. As a trial lawyer, I have every reason to agree. A recent court decision, Doe v. Baum, addressing university proceedings, sounded the traditional defense of cross-examination: “Due process requires cross-examination” to assess alternative narratives because it is “’the greatest legal engine ever invented’ for uncovering the truth.” 903 F.3d 575, 581 (6th Cir. 2018). The decision further asserts, “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”
Of course, the stakes for an accused individual at a university proceeding can be quite high, where sanctions may deprive a student of the value of an education and cast a shadow over the accused’s career prospects and reputation. For example, Columbia University provides for potential sanctions that include disciplinary probation, revocation of honors or awards, restriction of access to university facilities or activities, dismissal or restriction from university employment, disciplinary suspension, expulsion, and revocation of degree. Given these potential sanctions, there is ample reason to provide an accused with every opportunity to mount an effective defense, including a live hearing and cross-examination.
However, a competing factor that has led many universities to adopt a single investigator model is the encouragement of reporting sexual assault and sexual harassment. There is a very real concern that subjecting a victim to an adversarial system, especially cross-examination, is a painful, retraumatizing process which will discourage victims from coming forward. As stated by Simon McCarthy-Jones in the March 29, 2018, edition of the online news publication for leading scholars The Conversation:
In particular, cross-examination is frequently cited as retraumatising. In adversarial legal systems, it is the job of the defence to bring the prosecution’s case into doubt. In sexual violence cases, the survivor’s testimony may be the only evidence. This will therefore be the focus of attack for the defence. This is typically done by undermining the survivor’s credibility and reliability, and their story’s plausibility and consistency.
Survivors may be accused of lies and fabrication. Rape myths and stereotypes can be invoked. Detailed questioning can recreate the powerlessness and terror of the original assault. This is referred to as secondary victimisation or the second rape. It can have serious consequences for survivors’ mental health and well-being.
This legitimate concern of retraumatization has led many in the survivor community to condemn adversarial systems and embrace the single investigator model. Universities forming their internal processes have often been convinced of this logic. Moreover, during the Obama Administration, the Department of Education, through its issuance of the 2011 Obama Guidance, provided additional impetus for universities to move to a single investigator model.
C. The Obama Guidance on Live Hearings and Cross-Examination
The Obama Guidance did not mandate either a hearing model or a single investigator model. Instead, it generally stated that at any hearing “the parties must have an equal opportunity to present relevant witnesses and other evidence” and that the “complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.” Moreover, while the Department of Education’s Office of Civil Rights (OCR) “does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties.”
The Obama Guidance did, however, weigh in on the direct use of cross-examination by the accused and accuser: “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” Thus, under the strictures of the Obama Guidance, if a live hearing were to be held, cross-examination would have to be conducted by the panel alone or by representatives of the parties, which might include counsel. This did provide an incentive for universities to adopt a single investigator system, avoiding cross-examination altogether, dispensing with potential complications over access to counsel for the accused and the accuser. However, this model was criticized as depriving students accused of wrongdoing of their basic rights to due process and was challenged in the courts.
Thus, in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), an accused male student sued the University of Michigan for alleged violations of due process and of Title IX. In that case, a female student had alleged that the male student had sex with her while she too drunk to consent. The accused student claimed that his accuser did not appear drunk and expressly consented. The university had adopted a single investigator model for its Title IX proceedings, and an investigator assigned to the matter found the competing versions equally persuasive. A university board then ruled against the accused student, with no testimonial hearing at all, because it found the accuser’s description of events in the investigator’s report “more persuasive.” The Sixth Circuit found the school at fault for its failure to provide due process to the accused student, going as far as to require a live hearing and an opportunity to cross-examine in all cases in university proceeding where a decision rested on credibility determinations.
In contrast, other cases have found that due process may be satisfied without recourse to cross-examination, as long as other protections are in place, as in Haidak v. Univ. of Massachusetts-Amherst, which rejected the Sixth Circuit’s ruling and held that a well-run single investigator model would pass due process muster. 933 F.3d 56, 69 (1st Cir. 2019).
B. The Proposed Title IX Rules on Live Hearings and Cross-Examination
Secretary DeVos was evidently persuaded by the Sixth Circuit’s reasoning in Doe v. Baum. Her department’s Notice of Proposed Rulemaking accompanying the newly proposed Title IX rules explicitly relied on the decision in providing for a right to live hearings and cross-examination in connection with accusations of sexual harassment or sexual assault.
Thus, proposed rule § 106.45(b)(3)(vii) states: “For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice, notwithstanding the discretion of the recipient under section 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may participate in the proceedings.” The proposed rule also states: “At the request of either party, the recipient must provide for cross-examination to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party answering questions.”
Reactions to the live hearing and cross-examination proposals ran the gamut from positive to dismissive. For example, in largely positive comments, the ACLU, in a submission dated January 30, 2019, supported the requirement of a live hearing and an opportunity for cross-examination to assess credibility—but proposed limiting the right to “serious sanctions such as expulsion, suspension, or notation on a student’s permanent school record.” In this regard, the organization’s submission stated: “In cases that turn exclusively or largely on witness testimony, as is often the case in peer-on-peer grievances, cross-examination is especially critical to resolve factual disputes between the parties, and to give each side the opportunity to test the credibility of adverse witnesses.” The ACLU also recommended that (1) the decision-maker—or at least one decision-maker in the case of a panel—be a lawyer appropriately trained to adjudicate Title IX disputes, in order to ensure a measure of competence at the panel level; (2) the institution should require recipients to provide a lawyer to either party upon request to ensure that both sides would have access to counsel regardless of financial resources; and (3) the representative of the complainant or the respondent cannot be someone who exercises academic or professional authority over the other party.
In contrast, the Association of American Universities (AAU), in its comments of January 24, 2019, opposed any universal requirement for cross-examination using attorneys, stating: “Universities should be free to decide whether cross-examination is consistent with their educational philosophies and can be implemented effectively on their campuses given their resources.” The cross-examination process can be traumatizing and humiliating, not just for complainants but for respondents and third-party witnesses as well.” The AAU stated that there were “other ways to address issues of credibility that do not involve live cross-examination by attorneys,” such as providing for attorneys to appear as “non-participating advisors” and/or to allow for questioning through a panel.
All of these matters will once more be debated and analyzed once Secretary DeVos issues the regulations, which may adopt at least some of the suggestions to the draft made by the commentators.
In our final article in the series, we will examine one last specific proposal—setting a burden of proof for a finding of wrongdoing—and representative responses from commentators.
Other articles in this series:
1. The Controversial Proposed Title IX Regulations Addressing Sexual Assault on Campus (Part 1)
2. Defining Sexual Harassment on Campus in the Proposed Title IX Regulations (Part 2)
3. The Proposed Title IX Regulations on Reporting Sexual Harassment and Assault on Campus (Part 3)
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Mark H. Moore, who regularly counsels and litigates for clients in connection with sexual harassment and discrimination claims. As part of RPJ’s robust employment practice, the firm offers both in-person and online sexual harassment prevention training programs for employers and universities. More information can be found on our Training Programs page.