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.
Victims’ advocates have long argued that cross-examination could dissuade those who have been assaulted from reporting what happened to them. Meanwhile, due-process advocates have argued that cross-examination in a live hearing is important to suss out any discrepancies in testimonies. And in favoring that method, the new rules would ban colleges from having a single investigator—usually a lawyer or an administrator—gather facts and issue findings.
In recent years, a number of mostly private colleges have opted for the single-investigator method instead of the live-hearing model. And one of the primary reasons for the preference has been that live hearings created an environment that was “ripe for mistakes,” Kathryn Nash, a higher-education lawyer, told me. Nash says that when colleges have tried the live-hearing model in the past, in addition to potentially dampening the number of students who report their assaults, it also sets up thorny situations in which the institutions have to make decisions about whether to allow certain questions without a lawyer present to advise them.
Of course, the simple solution to that problem would be to just have an in-house counsel there to help make those decisions, but that is time- and resource-intensive. “The vast majority of institutions that are operating in this space are pretty limited in their resources,” Schneider says. That includes lots of small private colleges, as well as plenty of regional public institutions. “I worry that what’s going to happen here is that this process is going to become so cumbersome by design that people start pushing for ‘informal resolutions’ of these sorts of complaints.”
In other words, due to labor and budget constraints, institutions might find informal processes—such as issuing no-contact orders, counseling, and other methods of resolving sexual-misconduct allegations—more appealing. Of course, both parties—the accuser and the accused—would have to agree to an informal process. However, advocates for sexual-assault victims argue that the prospect of being cross-examined by an accuser could lead more students to choose the informal route. That could lead to “a patchwork system of handling sexual-assault complaints,” says Schneider.
That’s echoed by Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and a former assistant secretary at the Department of Education. “Virtually everybody would try to avoid live hearings,” she says. “It would be difficult to administer effectively and difficult to live through as either the accuser or the accused student.”
The proposed regulation will now undergo a 60-day public-comment period, and the department is obligated to respond to the public comments. It’s unclear whether the final rule will look exactly as it does now, but regardless of how the comment period goes, the end result will be a seismic shift in how colleges respond to—and dish out punishment for—accusations of campus sexual misconduct.
*A previous version of this story mischaracterized the proposed questioning process for students accused of sexual assault. We regret the error.
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