Month: February 2021

Countering Sex Discrimination at UCF

Post author By Deanna Brown
Post date February 10, 2021

David Acevedo, February 08, 2021

Adam Kissel, senior fellow at the Cardinal Institute for West Virginia Policy and visiting scholar at the Texas Public Policy Foundation, has filed a complaint with the Atlanta Office of the Department of Education Office for Civil Rights (OCR), alleging that the University of Central Florida (UCF) is in ongoing violation of Title IX. Readers should note that the Atlanta Office is one of twelve OCR regional offices in the country and oversees complaints not only in Georgia but also in Tennessee, Alabama, and Florida.

Kissel filed this complaint to bring UCF, one of the nation’s largest universities, into compliance with civil rights law. (His complaint is unrelated to UCF’s persecution of Professor Charles Negy, which NAS has commented on elsewhere.)

Title IX, the provision of the Education Amendments of 1972 that prohibits sex discrimination in educational institutions receiving federal funding, states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. [emphasis added]

Kissel’s complaint identifies seven UCF programs and scholarship that explicitly or implicitly exclude boys and/or men from participation based solely on their sex. Kissel contends that these programs are therefore in direct violation of Title IX and that OCR and UCF must take action to ensure that the programs conform to federal nondiscrimination requirements.

One such program is UCF’s Science Leadership and Mentoring (SLAM), which “empowers girls [not boys] to be assertive, brave, confident, independent, inquisitive and proud leaders in STEM” and limits applications to “[a]ll girls [not boys] entering 7th grade.” Kissel notes that UCF does not offer an equivalent program for 7th grade boys. He argues that this program expressly denies access to boys and is therefore in violation of Title IX.

Kissel also highlights scholarships that UCF offers or advertises exclusively to women, which violate Title IX according to an OCR clarification from January 2021: “Under Title IX, a recipient is prohibited from advertising or promoting … any scholarship, fellowship, or other form of financial assistance … that discriminates on the basis of sex.” Nevertheless, UCF offers or advertises at least two such scholarships, including the “American Association of University Women/Winter Park-Orlando Branch” scholarship and the “Diaz-McAgy/Total Nutrition Technology Women in Science Scholarship.” Kissel believes that advertising the former and directly offering the latter contradict OCR’s interpretation of Title IX and must be remedied.

Kissel cites several further examples—NAS has posted the full complaint here. NAS believes that Kissel has presented very strong evidence that UCF has committed multiple violations of Title IX law. We endorse his request that the Office for Civil Rights investigate this matter immediately. We also call on UCF to conduct its own immediate investigation and, without federal prompting, to reform its practices to ensure that it does not violate federal antidiscrimination law. UCF should not need external pressure to follow the law.

NAS generally supports equality of opportunity in higher education (and in our republic as a whole) among individual American citizens, and opposes group identity preferences of any sort, whether justified by equity, diversity, inclusion, affirmative action, or any other euphemistic rationale. These preferences rot the effectiveness of higher education—but, more fundamentally, they are unjust. We encourage work such as Kissel’s to ensure that colleges and universities live up to the letter of the law, and we also support all needed changes to the law to ensure that colleges and universities retain no legal permission to discriminate. When the law is unjust, the law should be changed.

Adam Kissel has informed NAS that he sent a courtesy copy of his OCR complaint to UCF’s Title IX office and subsequently spoke with the university’s Title IX coordinator. He assures us that UCF is taking the complaint seriously. We are delighted that OCR and UCF have begun so well, and we hope they will finish as well as they have begun.

David Acevedo is Communications and Research Associate at the National Association of Scholars.

Countering Sex Discrimination at UCF by David Acevedo | NAS

Campus Title IX

ATIXA’s Plan to Push a ‘Title IX Restoration Act’

Post author By Edward Bartlett
Post date February 5, 2021

ATIXA’s Plan to Push a ‘Title IX Restoration Act’

Wendy McElroy

February 4, 2021

President Joe Biden vowed to put a “quick end” to the Trump administration’s Title IX regulations and return to Obama-era ones at universities. If this happens, the sexual misconduct hearings will be deeply impacted. These “trials” judge whether those accused of sexual misconduct are innocent or guilty. The Obama-era hearings expressed social justice standards that greatly favored an accuser; the Trump-era ones were closer to the Western tradition of due process…..

Now a woke regime has returned to campus justice. Whatever happens will offer a window into how mainstream justice may evolve in the coming years. And ATIXA offers a window into the dynamics.

ATIXA is influential. Indeed, it is currently drafting what may be the next Title IX bill. ATIXA is “a professional association for approximately 5,500 Title IX coordinators, investigators, and administrators,” (as of January 18, 2021). It has the mission of “helping to advance gender equity in schools and colleges”; since 2011, it has trained and certified “more than 7,250 Title IX Coordinators and more than 23,550 Title IX investigators.” ATIXA’s job might seem to be the facilitation of whatever laws and policies are on the books, but it adamantly resisted implementing DeVos’s changes.

The College Fix documented one example. DeVos required the training materials used by Title IX administrators to be posted. This allowed an accused to access the rules and procedures by which he would be tried. ATIXA president Brett A. Sokolow has a history of covertly resisting such regulations. In a January 15, 2020, op-ed for Inside Higher Education, he advised: “About 20 to 25 percent of the (new Title IX) regulations are potentially very detrimental…and we will need…to work within those requirements, challenge them in court or find clever work-arounds” (emphasis added). Sokolow tried to work around posting training materials by claiming they were copyrighted and not able to be shared. The College Fix’s interpretation: “ATIXA will sue colleges for following a legally binding regulation.” Sokolow backed down, however, when the Department of Education’s Office of Civil Rights (OCR) noticed and doubled down on its demand.

Passive-aggressive obstruction is no longer necessary. A memorandum to ATIXA listserv members in early January 2021 commented, “Dear Members….The Senate will now be in Democrat control.” A lobbying firm was duly engaged, as Sokolow now considers new Title IX legislation to be “a realistic possibility”; it is an endeavor in which ATIXA wants to take a leadership role. “Our initial thoughts include the promulgation of a model Title IX Restoration Act (TIXRA, naturally),” he writes, to show “how Title IX should be reshaped by the Biden administration and Congress to best serve the field and the goals of sex/gender equity.” (Sex/gender equity is not clearly defined.)

Sokolow’s memo gives lip service to “due process”—a term that appears with scare quotes around it. Elsewhere, a poll of “ATIXA Title IX experts” offers a more concrete sense of the looming danger to due process. JD Supra reported on the poll in an article by Sokolow entitled “Biden Is President-Elect. Can We Just Ignore the Title IX Regulations Now?“ The new woke hearings should include:

Relief from direct cross examination by an advisor

Removal of nonsensical exclusionary/hearsay rule regarding “statements”

Revocation of the confusing rules on relevance v. directly related evidence

Two ten-day review periods likely collapsed into one period

Formal complaint requirement will be reversed

Hearing requirements for at-will employees will be limited

Hearings only required when some form of separation is on the table, and the definition of hearing will be broader and less formal

Mandated dismissal of Title IX complaints removed

Broad retaliation protections rolled back, especially as applied to respondents

Removal of any necessity for two processes

In short, the woke campus hearings would discourage direct cross-examination, allow hearsay, loosen rules of evidence, be conducted quickly, and bypass the need for a formal complaint…the denial of due process would be policy. This despite the fact that, as Sokolow stated in a phone interview, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.” A “model” Title IX bill is currently being drafted by ATIXA and will be circulated the “to Congress and Biden Administration.” An earlier draft entitled “ATIXA Submission to the ED ART on Title IX 12.18.2020” that was submitted to Biden’s education transition team hints at the content. The hints are confusing, however. The bill endorses Biden’s progressive approach while stating, “a return to…the 2011 DCL (Dear Colleague Letter) or maintaining the status quo of the 2020 regulations would not be supported by ATIXA’s 6,000 practitioner members.” In short, there is pushback from the membership. Also, a mountain of complaints and lawsuits have proven expensive in time and money.

Therefore “ATIXA seeks a balanced approach that honors the rights of all parties in the Title IX resolution process.” So far, so good. The same hearing standards would seem to apply to all participants regardless of gender or race. Yet, elsewhere, the submission commits to “focusing broadly on the impacts that Title IX work can and should have on the LGBTQIA+ community [and] on people of color.” There is a tension between the two statements.

Moreover, an accused’s due process rights are directly attacked. The right of cross-examination, for example, would be restricted to spare an accuser distress; “if cross-examination is required in a jurisdiction [where the campus is located], it is sufficient to have party-proposed questions submitted to and then posed by the neutral, impartial decision-maker,” presumably appointed by the university. The right of direct examination by the accused or his advocate would be denied. (Nothing is said about jurisdictions in which courts do not require the cross-examination.) Currently, if a witness refuses to submit to cross-examination, his or her statements during the investigation are not considered at the hearing. ATIXA wants this rule to be “revisited,” because “it’s too drastic, is too complicated for laypersons to apply, has no litigation equivalent, and takes away the discretion of the recipient to appropriately assess relevance and credibility.” Why “laypersons” are holding court-like hearings when the basics of due process and court procedure are too complicated for them to understand is not addressed.

Elsewhere, the clarity of ATIXA’s recommendations is chilling. For example, “ATIXA supports universal application of the preponderance of the evidence standard….Existing regulations permit a choice of standards.” Preponderance of the evidence means that if a hearing believes a rape complaint to be supported by 50.01 percent of the evidence, the accused is “guilty” and open to expulsion or other common punishments.

All in all, a prediction in the JD Supra article seems half correct. “If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach.” BUT the new Title IX is likely to be a new Obama-style DCL approach that is tweaked to avoid the legal pitfalls visited on the 2011 one. I disagree; withdrawing the 2020 regulations will not be a quick process.

The DeVos administration did not use a DCL or other guidelines to impose its regulations. It went through the arduous Administrative Procedure Act notice-and-comment process, which is why it was not enacted until 2020; the process and obstructionist tactics made it take that long. To rescind DeVos’s regulations requires the same long slog through bureaucracy and Congress. This alone makes new regulations unlikely before 2022 at the earliest.

ATIXA and Title IX may seem arcane to those not on campus or without a loved one who is. But the incredible bias and injustice embedded in earlier sexual misconduct hearings was integral in promoting a social division that borders on hatred. Close attention must be paid to the social justice measures on campuses, because they are part of the ideology promoting street riots, increased violence and hostility between groups. College administrators and professors have actively stoked hatred between the genders and the races for decades. And now society reaps a whirlwind.

Excerpted from https://mises.org/wire/title-ix-will-become-vehicle-more-injustice

Office for Civil Rights Title IX

Biden OCR Acting Head Appointee Has Dubious Record

Post author By Edward Bartlett
Post date February 4, 2021

Biden OCR Acting Head Appointee Has Dubious Record
by James Baresel

February 1, 2021

For over fifteen years Columbia University law professor Suzanne Goldberg has intermittently hovered around the fringes of major news stories. In 2003 she nearly achieved 15 minutes of fame as co-council in the Lawrence v. Texas case that saw the Supreme Court contradict its own precedents and declare a law against sodomy unconstitutional. Just over 10 years later she was a special advisor to her university’s president on matters of sexual assault during one of the first high profile controversies over academic institutions’ responses to rape allegations. Now Joe Biden has appointed her assistant secretary of the Department of Education’s Office of Civil Rights.

Goldberg’s new position only sounds obscure. In fact it means she will be acting director of the OCR, responsible for planning and implementing the thousand and one details needed to translate a broad agenda into practical action—rendering its new holder’s record of considerable interest.

One key point in assessing Goldberg is the distinction between how she interprets the meaning of laws is interpreted and how handles allegations concerning the facts of particular cases. Where the former is at she undoubtedly favors “spinning” laws (including Constitutional law) to fit her own ideological presuppositions, as displayed in Lawrence v. Texas. The issue here is not what one thinks of the anti-sodomy law the Supreme Court struck down. It is Goldberg’s support for a judicial activism that disregarded the original intentions of legislators and spun the meaning of texts in order to bring about a change she desired through a court’s fiat rather than normal legislative processes. That she will give similar treatment to the meaning of the civil rights legislation she is now responsible for implementing seems probable.

What this does not tell us is what standards Goldberg would set for assessing allegations that a particular person violated (her interpretation of) civil rights legislation. This question does not concern what behaviors she believes violate such legislation or whether her beliefs correspond to legislators’ intentions. It concerns the standards of evidence that must be met for allegations to be officially “proven.” On this topic her record at Columbia University is too ambiguous to be reassuring.

Insight into Goldberg’s attitudes can be gained from the case of Emma Sulkowicz, who attained notoriety in 2014 as a sort of forerunner to the “Me Too” movement by melodramatically carrying a mattress around Columbia’s campus for her entire senior year. To the media she claimed to be protesting the university’s refusal to expel a student who had raped her. In reality a university investigation had concluded her allegation failed to meet even the standard of “more likely than not,” a decision reached despite excluding evidence in the accused student’s favor . The New York City police also determined Sulkowicz’s claims could not be substantiated, while the accused student voluntarily met with a member of the district attorney’s office and was assured there were no grounds for prosecution.

Sulkowicz then took her story public, launching a campaign to drive her alleged attacker from the university and revealing his name in violation of Columbia’s confidentiality policies. Short of expelling the accused student without evidence, the university surrender as abjectly as possible. Policies establishing that the break of confidentiality was grounds for disciplinary action were changed rather than enforced One of Sulkowicz’s professors accepted her mattress carrying as a “visual art project” that served as her major’s equivalent of a thesis with the full acquiescence of the administration. Not surprisingly, the accused student was subjected to ostracism and harassment.

Goldberg would not only have played a role in formulating the administration’s response to this situation as an adviser on sexual assault policies but was appointed to the office of Executive Vice President for University Life created (in part) to more thoroughly address such matters It is hard to imagine she would have been in such positions of trust while deeming the university’s low standards of proof unacceptable. When Sulkowicz’s supporters staged a “Day of Action” (carrying their own mattresses) Goldberg and the university president issued a statement saying that: “No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations.” After the accused student sued the university, its entrusted its defense to a lawyer with whom Goldberg co-taught classes rather than a member of the firm it usually employed.

Despite her indulgence of unofficial tarring of individuals cleared by formal investigations, Goldberg does seem to have the integrity to insist that such investigations be conducted in an unbiased manner aimed at objectively determining whether or not allegations are corroborated by the level of evidence stipulated by whatever regulations happen to be in force. On this point at least she has been willing to protect justice despite the ire of Columbia’s would-be lynch mobs She also revised Columbia policies not only to more effectively respond sexual assault allegations but to better assure due process for the accused in formal investigations. Subsequent to this, however, it introduced further policies revisions aimed at countering federal regulations instituted by the Trump administration in the interests of due process.

While Goldberg has the integrity to rise above show trials and (at least in official proceedings) guilty until proven innocent assumptions, her concern for justice seems too meager to be reassuring.

Source: https://ifeminists.org/e107_plugins/content/content.php?content.1492

Investigations Start By Believing Trauma Informed Victim-Centered Investigations

PR: New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

Post author By Edward Bartlett
Post date February 3, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

WASHINGTON / February 3, 2021 – A new report released today addresses the growing influence of guilt-presuming “victim-centered” concepts in criminal proceedings. Titled, “Defending Against ‘Victim-Centered’ Proceedings: Guide for Criminal Defense Attorneys,” the report features strategies and verbatim statements to counter bias during each stage of the legal process:

Voir Dire
Opening Statement
Cross Examination: Complainant
Cross Examination: Investigator
Cross Examination: Prosecution Expert Witness
Closing Argument

“Victim-centered” approaches, also known as “trauma-informed” or “Start By Believing,” are gaining wider acceptance among police officers, prosecutors, and even judges in sexual assault, domestic violence, and child abuse cases:

Investigative bias by police officers has been linked to 35% of all wrongful convictions (1). But the International Association of Chiefs of Police makes the claim that “Victim-centered, trauma-informed approaches to crime can support victim recovery and engagement with the criminal justice system.” (2)

Prosecutors increasingly are invoking victim-centered theories. One of the most common theories is the complainant experienced “tonic immobility,” resulting in the person being unable to resist an impending assault. This claim has been refuted by the National Association of Criminal Defense Lawyers (3).

Judges are being urged to embrace victim-centered philosophy, as well. The website of the National Council of Juvenile and Family Court Judges, for example, reveals, “The NCJFCJ’s work with courts is informed by a focus on trauma using a universal precautions approach that assumes children and families involved in the court system have experienced some form of trauma that may be mitigated through court-based interventions.” (4) Policies that “assume” a party has been traumatized serve to vitiate the presumption of innocence and harm judicial impartiality.

Many authorities have voiced criticism of “victim-centered” and “trauma-informed” methods. Defense attorney Scott Greenfield ironically reasons, “The ‘trauma informed’ approach is not to ask, not to question, but to believe.…Who is the victim would seem to be a critical question, but ‘trauma informed’ policing says it’s the woman and should it be the falsely accused man, too bad, so sad. Take a bullet for the cause, guy.” (5)

Victim-centered methods remove a defendant’s due process right to a fair investigation and adjudication. Defense attorneys making discovery requests of police, prosecutors, and judges are urged to ask if they have received “victim-centered” training in order to assess the potential for actual bias and/or the need for recusal.

The new report, developed by SAVE, is available online: https://www.saveservices.org/wp-content/uploads/2021/02/Defending-Against-Victim-Centered-Proceedings.pdf

Links:

Department of Education Department of Justice Due Process Law & Justice Legal Office for Civil Rights Sexual Assault Title IX

The Biden Plan For Title IX Must Protect Due Process

Post author By Deanna Brown
Post date February 1, 2021

By: MICHAEL POLIAKOFF | January 25, 2021

The 18th-century British jurist William Blackstone pronounced, “It is better that ten guilty persons escape, than that one innocent suffer.” There are few principles of law we hold more sacred than “innocent until proven guilty.” For most of the last decade, however, this doctrine has had negligible impact in matters of campus sexual assault.

There are policies of the previous administration that President Joe Biden is already in the process of overturning or altering. It would be well, however, for him to reconsider his campaign promise to “return to and then build on” the Obama administration’s Title IX policies, which led to more than 500 investigations of accused students and shattered an untold number of lives. Having himself been the object of unproven allegations of sexual assault, he must look into his own heart before reinstituting campus procedures that make a mockery of justice.

The victim of sexual assault is likely to bear the emotional and psychological scars for years to come. It is a moral imperative for an institution of learning to protect students from the trauma that ensues. But the mirror image of that horror happens when an innocent person is unjustly found guilty of sexual assault and punished – typically by expulsion or long-term suspension – by his college. The reputational scars and career damage may last a lifetime. Due process provides a greater likelihood that punishment will fall on the guilty and not those wrongfully accused.

There are many instances in which the courts have found wrongful prosecution. Sometimes the case hinged on spectacular mendacity, like the invented account of a brutal gang rape in a University of Virginia fraternity house in 2014 that provided Rolling Stone with a fraudulent cover story. Or the dishonest prosecution launched by an opportunistic district attorney—later disbarred—of Duke lacrosse players that showed how quickly a prestigious university, from the president on down, called for punishment when no crime was committed.

Last spring, U.S. Secretary of Education Betsy DeVos signed a Final Rule that provided key definitions and regulations for the enforcement of Title IX when students accuse other students of campus sexual assault. In addition to the rule’s protection of alleged victims, including reporting procedures and survivor support, it notably provides to the accused the rights to present, cross-examine, and challenge evidence in campus hearings.

You do not have to be a constitutional scholar to recognize that Secretary DeVos was right to redress a longstanding ethical and procedural abuse. The Biden administration must not reverse her important work and bring back the guilt-presuming process that the Obama administration demanded in its April 4, 2011, “Dear Colleague Letter” and in subsequent, egregious misinterpretations of Title IX.

These extra-legal Department of Education decrees, which never went through a formal regulatory review process, pressured universities to stack proceedings against accused students. They even threatened to take away institutions’ federal funding if they allowed cross-examination of accusers in campus hearings. Thus, did the Obama administration deprive accused students of what the Supreme Court has repeatedly called “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

“Innocent until proven guilty” does not fare well against dramatic claims of sexual violence. At the extreme end, recall then-congressman Jared Polis, now governor, who inverted Blackstone’s wisdom by stating in a House higher education subcommittee meeting on sexual assault: “If there are 10 people who have been accused, and under a reasonable likelihood standard, maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transfer to another university, for crying out loud.”

For crying out loud, indeed. What college or university is going to admit a person, innocent or not, who has been expelled on a charge of sexual assault? What company, scholarship foundation, or professional school is going to take that person whose academic record will forever show expulsion or even suspension for sexual assault?

President Biden should consider documented cases like that of the Amherst student who was expelled based on a woman’s claim that he had forced her into sexual contact more than 20 months before—even though her own text messages proved that in fact she had been the active party when he was blackout drunk in her room.

Had the accusations hurled against President Biden on the campaign trail been leveled years ago against College Joe and adjudicated under a campus regime like the one later decreed by the Obama-Biden administration, he would probably have had no meaningful chance to defend himself or clear his name. His career and American history would have been entirely different.

Michael Poliakoff is president of the American Council of Trustees and Alumni, an independent, non-profit organization committed to academic freedom, excellence, and accountability at America’s colleges and universities. He previously served as vice president for academic affairs and research at the University of Colorado and in senior roles at the National Endowment for the Humanities and the Pennsylvania Department of Education. He has taught at Georgetown University, George Washington University, Hillsdale College, the University of Illinois at Chicago, and Wellesley College. He received his undergraduate degree magna cum laude from Yale University, a Class I Honours B.A. at Oxford University as a Rhodes Scholar, and a Ph.D. in classical studies from the University of Michigan.

The Biden Plan For Title IX Must Protect Due Process (forbes.com)

Campus Civil Rights Department of Education Due Process Law & Justice Legal Office for Civil Rights Title IX

Keep Cross-Examination Out of College Sexual-Assault Cases

Post author By Deanna Brown
Post date February 1, 2021

By Suzanne B. Goldberg
JANUARY 10, 2019

Requiring cross-examination in campus sexual-misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-examination “the greatest legal engine ever invented for the discovery of truth.” Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

Traditionally, students involved in college-misconduct processes have been permitted to choose an adviser to provide them with support and information. In many instances, peer advisers, faculty members, and even parents have ably filled that role. Likewise, at most colleges, neutral faculty members or administrators are assigned responsibility for asking questions and otherwise investigating to determine whether wrongdoing occurred.

But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.
One might think that colleges would voluntarily assign faculty members and administrators to take that responsibility. But it is one thing for a faculty or staff member to inform and support a student, as many currently do, and quite another to adversarially cross-examine a student who is also part of his or her own institution. Individual educators, as well as the college, may see this as conflicting with their responsibility to support all students. Still, the regulations would require institutions to provide students with an adviser to do the cross-examining if a student does not bring his or her own adviser to a hearing.

Training these campus-based advisers would pose additional challenges. As a general matter, preparing administrators and professors to conduct investigations and hearings in a fair and impartial way fits well with what colleges already do in committing to value all students equally. But training in techniques for casting doubt on a student’s credibility, which is an essential function of cross-examination, cuts in a different direction.

To be sure, some students will hire lawyers or find a family friend to help. For many, though, that option will be unaffordable or unavailable. This disparity between students may not be as significant when advisers play a quiet, supporting role, but it almost certainly will amplify inequities and increase the risk of obscuring efforts to learn the truth of what happened when a lawyer questions one student and a nonlawyer questions the other.

Through my work on these issues nationally, I have heard some advocates propose that colleges provide students with lawyers when charges are serious even if they do not do so for other serious misconduct cases. Even the Department of Education has not gone that far, however, perhaps recognizing that most American colleges could not do this without diverting funds from financial aid, faculty hiring, and other core educational needs. Of more than 4,000 higher-education institutions in the United States, few have lawyers on staff to serve in that role, and even fewer (just over 200) have accredited law schools with faculty members or students who might pitch in.

Still, some say adversarial questioning is necessary for campus sexual-misconduct cases, even when it is not used for other student-misconduct matters such as those involving illicit drug use, vandalism, and nonsexual assault. As one court wrote, adversarial questioning “takes aim at credibility like no other procedural device” because it enables the accused to “probe the witness’s story to test her memory, intelligence, or possible ulterior motives.”

But questions need not be adversarial to assess credibility. Nearly all courts to consider the issue have found fairness can be fully achieved through questioning by a neutral college administrator. And although the Department of Education says that its proposal will avoid “any unnecessary trauma” that might come from students questioning one another directly, some advocates argue that concerns about trauma remain strong and will probably deter students — especially those who are afraid of the accused student — from filing complaints at all. Exacerbating the risks here, the proposed regulations would forbid institutions from relying on statements of students who decide they are unable, for emotional or other reasons, to subject themselves to cross-examination.

More broadly, it is a serious question whether cross-examination is even effective in this setting. Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling. Research shows, for example, that a witness’s nervous or stumbling response to adversarial questioning is more likely an ordinary human reaction to stress than an indicator of false testimony.
Since the Department of Education has stressed its respect for colleges’ expertise, it might consider commissioning a study to test the effectiveness and risks of campus cross-examination. But to override current, experience-based procedures and impose a national cross-examination rule across all higher-education institutions in the United States would undermine, not enhance, the fair and impartial treatment that all students deserve.

Suzanne B. Goldberg is a law professor at Columbia University. She is also director of the law school’s Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic.

A version of this article appeared in the January 18, 2019, issue

Keep Cross-Examination Out of College Sexual-Assault Cases (chronicle.com)