Cross-examination: DOE Implements New Rules for Sexual Misconduct Hearings at Colleges

The new rules recently announced by the U.S. Department of Education governing how schools protect due process rights of those accused of sexual misconduct should not surprise anyone following our blog posts.

It’s been two years since we wrote about a federal appeals court decision upholding the right of a student accused of violating a school’s sexual misconduct policies to cross-examine the accuser.We referred at the time to reports about the DOE making sweeping changes to how colleges and universities —as well as K-12 schools—handle sexual assault,harassment, and sexual misconduct allegations. The DOE regulations finally take effect this August, so now might be a good time to look at what schools must do to comply.

Leaving it to schools to determine how to comply with Title IX

The authority for the action taken by the secretary of DOE is Title IX of the Education Amendments of 1972, which is commonly referred to simply as “Title IX.” The law prohibits sexual discrimination in education programs accepting federal funding. This means that any public or private educational institution from kindergarten through colleges and universities which receives money from the federal government must comply.

Until the current secretary rescinded it in 2017, a letter from the DOE containing general recommendations for schools to follow when responding to sexual harassment and sexual violence allegations made by one student against another was all schools had to guide them in complying with Title IX. In essence, the letter left it to the schools to determine how to promptly and effectively respond to allegations at their facilities.

DOE directive replaces “dear colleague letter”

Unlike the advisory letter the prior administration sent to schools,and which could easily be rescinded, the regulations taking effect on August 14,2020, cannot be revoked by a new administration. The use of a directive, rather than a letter, to implement the regulations means it would take an act of Congress to rescind them.

The regulations address several topics related to reports of sexual misconduct at educational institutions subject to Title IX, including:

·      They require schools to accept reports of sexual misconduct from parties, including friends, bystanders, parents, others, and the victims.

·      Incidents occurring on property owned or under the control of a school, such as fraternity and sorority houses, are subject to the regulations even though they may not be on the actual campus. Schools would be required to investigate incidents that occur at locations not on school property or property not under a school’s control as long as the students were participating in a program or function related to the school.

·      Schools must choose a standard of proof to be applied in all sexual misconduct cases of either preponderance of the evidence or clear and convincing evidence.

·      Students accused of sexual misconduct have the right to have a hearing, but schools may elect to implement procedures for remote hearings.

·      A student accused of sexual misconduct, which now includes harassment, has the right to cross-examine witnesses.

The right to cross-examine witnesses has drawn criticism from victim’s rights advocates who claim it will make victims reluctant to come forward with allegations due to fear of being confronted at a hearing by the accused. However, the regulations implement measures to afford due process without putting victims in face-to-face confrontations with the accused.

The accused will not be allowed to cross-examine the victim directly, and victims may choose not to be present with the person they allege engaged in wrongful behavior. Schools also must institute procedures at hearings which prevent the accused from using evidence of a victim’s prior sexual behavior in defending against allegations of sexual misconduct.

Hearings and cross-examination are fundamental to due process

The argument that imposing these regulations on schools will cause some victims of sexual assault not to come forward may be valid in certain situations. Equally persuasive, however, is the argument that taking disciplinary action against a student, including expelling them from school without procedural safeguards, violates the fundamentals of due process.

When someone faces imprisonment or other punitive measures by the state for committing a crime, notice of the charges, the right to atrial, and the right to confront witnesses and challenge the evidence against them is a cornerstone of the criminal justice system. That is important to consider when one takes into account the fact that the majority of allegations in Title IX complaints are criminal in nature and can easily lead to criminal prosecutions.

Furthermore, taking away the right of a student to pursue an education in the face of allegations of sexual misconduct also requires procedures, such as those now being implemented by the DOE, that protect the due process rights of the accused without treading upon the rights of victims.

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