Federal judge William Young of the Federal District Court for Massachusetts indicated he may strike down part of the rule implemented by Education Secretary Betsy DeVos regarding how schools are required to respond to sexual misconduct allegations under Title IX.

The regulations implemented August 14, 2020 require universities to allow cross examination. The requirement of cross examination, which is the norm in every other judicial proceeding, is nevertheless the single most controversial part of the new regulations as applied to college campuses.

Advocates of victims’ rights claim that subjecting anyone who accuses another of sexual misconduct to cross examination will discourage reporting of sexual assault and may “re-traumatize” victims. Absent from these arguments is any compelling justification for why American college students should be exempt from the most common and long-standing procedures for testing the credibility and truthfulness of witnesses, which apply in every other criminal, civil, or administrative justice system.

Nevertheless, to give teeth to the cross-examination requirement, the new rules impose a rather broad consequence to make sure the rule is enforced. If any witness refuses to submit to cross examination, a campus court can’t consider what they have to say as evidence. The campus court must decide guilt or innocence without them.

Plaintiffs who oppose the new Title IX regulations believe that DeVos’ regulations, as they currently stand, will force colleges to throw out all past statements as evidence, even where a witness is simply unavailable or not directly involved in the process, like a nurse, an off-campus cop, or other third parties.

Refusing to consider evidence may seem appropriate where the accused or the accuser refuses to come forward, but it makes less sense if a witness like a police officer who took a report can’t come to the campus court hearing. Or what about a doctor or nurse who did a rape kit?

If a witness such as this can’t make it to the hearing, should their evidence be eliminated?

Neither students nor schools can compel people to come to the campus courts and give their testimony. It seems potentially unfair to exclude all witnesses’ evidence unless they testify live.

And what about textual evidence? Parties often text or FB Messenger each other before, during, and after troubled sexual encounters. These too are statements of the witnesses. Sometimes this is incriminating; sometimes it is exonerating.

But if a person refuses to come into the campus court proceeding to testify about their own messages, should this too be thrown out? Potentially, this makes a loophole that parties could abuse to keep out their own messages, just because they don’t think the past messages put them in a good light.

Judge Young remarked in court that the education department’s argument was “very cogent,” but he required more information about how the rule would allow campuses to use evidence like rape kits, police reports, hospital reports, hearsay and text messages in such Title IX cases.

Based on his questions, Young did not indicate he would strike down the entire regulation. Rather, he focused on specific parts of the regulations about what may or may not be considered evidence.

The narrow scope of Judge Young’s questions may indicate victory for regulations as a whole. Even if the court imposes some changes for greater clarity with regard to evidence standards, Judge Young seemed to take issue only with how the rule might exclude certain evidence. He showed no inclination to strike down the entire Title IX rule. He stated his interpretation of the rule was that it created a “blanket bar” on hearsay in cases, a ban that would be impractical in Title IX cases.

If the court imposes changes that provide for greater protections so that evidence can be presented by both parties, this will likely create more robust Title IX proceedings on campus, helping both the victims and the accused.

Evidentiary rules in Title IX cases

In court, the plaintiff attorneys argued that the current rule allows statements to be used as evidence and does not forbid using “hearsay” as do the strict rules of evidence in court proceedings. The Title IX regulations do not “incorporate the federal rules of evidence.”

Much of the controversy surrounding schools’ Title IX proceedings, which led to the new rules in the first place, focuses on campus administrators’ arbitrary exclusion of evidence.

If schools were simply allowed to exclude any statement—including text messages or other statements by the parties themselves—just because one party refused to submit to live cross examination, schools would still be free to continue their worst past practices. They could throw out important evidence that exonerates accused students simply by urging the alleged victim not to participate.

The cross-examination rule is meant to protect students who are deprived of the possibility of cross examining witnesses, for example, when one student accuses another, and schools refuse to allow the accusing student to be questioned. For example, in a recent case against Syracuse, a student was accused by multiple other students, not one of whom bothered to participate in the investigation or came to the accused student’s hearing. His own statements made in his defense were never contested by any witness or by any of his accusers. Nevertheless, Syracuse found him guilty and expelled him. It is this kind of unfair process that the new Title IX regulations are meant to avoid. It was not meant as a new tool for arbitrary administrators to continue arbitrary and unfair proceedings.

This marks the first case challenging DeVos’ rule to head to trial, after previous lawsuits challenging the rule were unsuccessful.

There have been four lawsuits challenging the new Title IX regulations, one of which has already been dismissed. In two others, the plaintiffs’ bids to halt the regulations in their tracks by asking the courts for nation-wide preliminary injunctions have failed.

It seems likely that some form of the cross-examination right will survive, making it essential for alleged victims and the accused to get experienced higher education attorneys to advise them in the process.

Universities will be carefully watching as all these lawsuits proceed.