The Office for Civil Rights of the Department of Education released new regulations on November 16, 2018. Many of the new rules will likely increase the reliability of Title IX proceedings and should be welcomed by both the advocates of victims and the advocates for the rights of the accused.
One cornerstone of the new regulations is a requirement (not an option) that colleges and universities allow cross-examination in sexual misconduct cases. Colleges and universities must now permit “each party to ask the other party or any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The rule permits cross-examination through the parties’ advisors, who may be attorneys, to avoid a direct confrontation between the student making an accusation and their accused attacker. The common practice of separating parties in different rooms during Title IX proceedings will also remain in place.
The new cross-examination requirement will undoubtedly increase the need for legal counsel. Previously, campus “judiciaries” had the discretion to receive proposed questions submitted by students or disallow cross-examination entirely. They had no obligation to actually ask the questions received. Advisors supporting students (including attorneys) were not allowed to speak or pose questions of any kind.
Unlike previous guidance in the form of “questions and answers” or Dear Colleague Letters, the new rules will have the force of law when implemented.
They have been the subject of heated controversy. One example is the standard of proof for Title IX proceedings. The new regulations propose to leave in place a school’s discretion to decide Title IX cases under the “preponderance of the evidence” standard: whether it is “more likely than not” that the alleged conduct occurred. In 2011, the Department of Education required this standard. That was revoked in September 2017, and it will now stay revoked.
But there is also no requirement to use higher standards of proof (such as “clear and convincing evidence” or “beyond a reasonable doubt”). Furthermore, most colleges already used “preponderance” before, during, and after the 2011 guidance that required “preponderance.” Few are likely to change now. Advocates of “preponderance” argue that it is the proper standard, because—if properly applied—it does not tip the scales to either party, whereas higher burdens of proof benefit only the accused.
Victims-rights advocates have attacked the OCR for permitting the discretion to use higher standards of proof. And they have a point: Preponderance is the standard used to decide cases of sexual harassment or sexual assault throughout the civil justice system. Employees and employers in corporations or university staff can be sued in federal court under multiple anti-discrimination laws, including Title VII or Title VI of the Civil Rights Act. Why should they be judged under the preponderance standard, but students should somehow get a higher standard of proof?
The same reasoning should apply equally to the cross-examination requirement. Yet Congressman Joe Kennedy III of Massachusetts was prompted to exclaim that it was “absolutely sickening” to allow cross-examination by an “accused sexual abuser.” Legal counsel to the Victim Rights Law Center condemned cross examination as “a horrible idea” that somehow gives rapists control over their victims.
Cross examination is a bedrock right for defendants (and plaintiffs) in anti-discrimination cases of all kinds, without exception, whether or not the accusations involve sexual assault and harassment. Why should it be “absolutely sickening” to give this right to both parties in campus Title IX proceedings? We believe it is necessary in all other contexts.
There are other important changes in the proposed rules, which this blog will address in subsequent posts. For example, the proposed regulations emphasize that the burden of proof rests squarely on the school, not on students. It is not the victim’s responsibility to prove that a perpetrator committed a sexual assault. Likewise, accused students are not required to prove their innocence. The rules also state explicitly that the accused, as is the norm throughout American jurisprudence, is presumed not responsible until shown otherwise.
Once published in the Federal Registry, the proposed rules will be open for comment for 60 days, after which they will be promulgated with the force of law.