On Friday, the Education Department released its heavily anticipated proposal that would revamp the way colleges deal with accusations of sexual misconduct on campus. Many of the details in the proposed regulation did not come as a surprise. Still, one feature of the rules in particular stood out: Colleges will be required to allow students accused of sexual assault to cross-examine their accuser at a live hearing.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” Education Secretary Betsy DeVos said in a press release on the new rules. “Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.” But several higher-education attorneys told me that instead of setting clear policies for institutions to follow, the new regulations may push institutions toward less formal methods of resolving sexual-misconduct complaints that can result in less harsh of a penalty for wrongdoing.
To be sure, cross-examination is a “powerful tool,” says Scott Schneider, an attorney at the firm Husch Blackwell who specializes in higher education—but only when used in certain ways. “When people glibly talk about cross-examination being the greatest tool for discovering the truth in the history of the Western world, they obviously haven’t seen some attorneys do cross-examination,” he says. DeVos’s proposal stipulates that the cross-examination can be done by a third party, such as a lawyer.* Schneider worries that this could create a system where rich students who can afford a good attorney would have an unfair advantage in the hearings.