In a recent op-ed published in Real Clear Politics, Patricia Hamill, Co-Chair of Conrad O’Brien’s Title IX and Campus Discipline practice, and KC Johnson, an American history professor and frequent commentator on due process rights for accused students, called out a comment signed by 19 senators that advocates for even fewer rights than provided for by the proposed Title IX regulations:
It’s not every day that any U.S. senator – much less 19 of them – denounce the presumption of innocence. Or describe hearings with cross-examination, hallmarks of both the criminal justice and the congressional oversight systems, as “wholly unnecessary to determine what happened in a particular incident.”
Those remarks came in a seven-page comment released from the senators in question, all of them Democrats, in response to new Title IX regulations proposed by the current administration, which already dramatically scale back procedural protections for accused students. Their ranks included respected moderates such as Amy Klobuchar and Jack Reed, as well as civil libertarians like Ron Wyden.
That many politicians are fair-weather friends of civil liberties is old news. But for students who face a campus adjudication, the consequences of this almost cavalier dismissal of basic fairness is troubling.
Over the past decade, colleges and universities have faced pressure, most especially from the federal government, to crack down on campus sexual assault. In response, most of them instituted one-sided adjudicatory procedures that tilted the process in favor of complainants. At the extreme was the “single-investigator” model, where one person, hired by the Title IX office, would meet individually with each student and then render a decision, with few if any checks and balances along the way. Colleges found this model attractive for cost-related reasons, and because it was seen as a way to encourage more victims of assault to come forward and to shield complainants from what was perceived to be a more challenging process involving live hearings.
But a system in which accused students could neither ask questions nor see the testimony of witnesses against them is inherently unfair. During a court proceeding addressing the University of Michigan’s single-investigator model, one federal appellate judge observed that the university seemed eager to “set up a kangaroo court.” That lawsuit was one of hundreds filed by accused students, and the resulting court decisions prompted the Education Department in 2020 to issue Title IX regulations that promoted more procedural fairness at the campus level.
Those regulations, in place for the past two years, provide both accusing and accused students full access to evidence and a live hearing with cross-examination through an advisor – ensuring that accused students can defend themselves but also safeguarding against colleges sweeping a complainant’s allegation under the rug. Colleges must presume accused students innocent and cannot punish them before the grievance process concludes, while also providing a wide array of supportive services for complainants.
These are the hallmarks of any fair system, especially in campus sexual assault adjudications, which generally involve murky sets of facts and turn on the credibility of the involved parties. As the Supreme Court has recognized, requiring a “witness to submit to cross-examination [is] the ‘greatest legal engine ever invented for the discovery of truth.’” At the same time, unlike a trial, the current Title IX regulations forbid the accused student from asking questions himself, allow institutions to limit the bounds of cross-examination, require schools to provide advisors at no cost, and feature closed hearings (where the parties are often not even in the same room) to further facilitate the process.
The proposed regulations, by contrast, would revoke not only the right of accused (and accusing) students to see and hear live witness testimony and cross-examine witnesses and the other party through an advisor, but also to receive a full record of the evidence. Schools also will be allowed to impose interim punishments on accused students based solely on an allegation.
In virtually any other context, this erosion of core procedural protections would have generated alarm, even outrage, from senators who have otherwise passionately defended civil liberties for the accused in debates over criminal justice reform. Here, however, the senators’ only complaint is that the administration did not go far enough.
The 19 senators contended that presuming accused students innocent “perpetuates the harmful and false stereotypes that those who report sex-based harassment are being untruthful.” Their “evidence” for this startling conclusion was based on irrelevant studies – and their logic would undermine core American principles that those accused of crimes outside a campus setting are presumed innocent until proven guilty.
The legislators also appeared to wonder why the current administration did not outright prohibit cross-examination, although doing so would have run afoul of multiple federal and state court decisions. Sidelining the Supreme Court’s observations on the value of cross-examination, the senators cited three academic articles (one dealing with child witnesses, not an issue in campus Title IX hearings) questioning the concept. The senators’ concerns about “re-traumatiz[ing] survivors” are not to be dismissed. They cannot, however, be the basis to bar cross-examination in its entirety in light of the safeguards already present in Title IX proceedings that minimize the strain on the involved parties.
As one federal district court judge put it, in plain reasoning that one assumes is understood by our nation’s lawmakers: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning…If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”
With many senators indifferent or even hostile to basic fairness in campus adjudications, even as they present themselves as champions of civil liberties, the rollback of rights in the proposed regulations raises grave concerns about the fairness of future Title IX proceedings and the integrity of their outcomes.
K.C. Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.
Patricia Hamill, an attorney, is co-chair of the Title IX and Campus Discipline Practice at the law firm of Conrad O’Brien, P.C.