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Keep Cross-Examination Out of College Sexual-Assault Cases

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By Suzanne B. Goldberg
JANUARY 10, 2019

Requiring cross-examination in campus sexual-misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-examination “the greatest legal engine ever invented for the discovery of truth.” Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

Traditionally, students involved in college-misconduct processes have been permitted to choose an adviser to provide them with support and information. In many instances, peer advisers, faculty members, and even parents have ably filled that role. Likewise, at most colleges, neutral faculty members or administrators are assigned responsibility for asking questions and otherwise investigating to determine whether wrongdoing occurred.

But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.
One might think that colleges would voluntarily assign faculty members and administrators to take that responsibility. But it is one thing for a faculty or staff member to inform and support a student, as many currently do, and quite another to adversarially cross-examine a student who is also part of his or her own institution. Individual educators, as well as the college, may see this as conflicting with their responsibility to support all students. Still, the regulations would require institutions to provide students with an adviser to do the cross-examining if a student does not bring his or her own adviser to a hearing.

Training these campus-based advisers would pose additional challenges. As a general matter, preparing administrators and professors to conduct investigations and hearings in a fair and impartial way fits well with what colleges already do in committing to value all students equally. But training in techniques for casting doubt on a student’s credibility, which is an essential function of cross-examination, cuts in a different direction.

To be sure, some students will hire lawyers or find a family friend to help. For many, though, that option will be unaffordable or unavailable. This disparity between students may not be as significant when advisers play a quiet, supporting role, but it almost certainly will amplify inequities and increase the risk of obscuring efforts to learn the truth of what happened when a lawyer questions one student and a nonlawyer questions the other.

Through my work on these issues nationally, I have heard some advocates propose that colleges provide students with lawyers when charges are serious even if they do not do so for other serious misconduct cases. Even the Department of Education has not gone that far, however, perhaps recognizing that most American colleges could not do this without diverting funds from financial aid, faculty hiring, and other core educational needs. Of more than 4,000 higher-education institutions in the United States, few have lawyers on staff to serve in that role, and even fewer (just over 200) have accredited law schools with faculty members or students who might pitch in.

Still, some say adversarial questioning is necessary for campus sexual-misconduct cases, even when it is not used for other student-misconduct matters such as those involving illicit drug use, vandalism, and nonsexual assault. As one court wrote, adversarial questioning “takes aim at credibility like no other procedural device” because it enables the accused to “probe the witness’s story to test her memory, intelligence, or possible ulterior motives.”

But questions need not be adversarial to assess credibility. Nearly all courts to consider the issue have found fairness can be fully achieved through questioning by a neutral college administrator. And although the Department of Education says that its proposal will avoid “any unnecessary trauma” that might come from students questioning one another directly, some advocates argue that concerns about trauma remain strong and will probably deter students — especially those who are afraid of the accused student — from filing complaints at all. Exacerbating the risks here, the proposed regulations would forbid institutions from relying on statements of students who decide they are unable, for emotional or other reasons, to subject themselves to cross-examination.

More broadly, it is a serious question whether cross-examination is even effective in this setting. Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling. Research shows, for example, that a witness’s nervous or stumbling response to adversarial questioning is more likely an ordinary human reaction to stress than an indicator of false testimony.
Since the Department of Education has stressed its respect for colleges’ expertise, it might consider commissioning a study to test the effectiveness and risks of campus cross-examination. But to override current, experience-based procedures and impose a national cross-examination rule across all higher-education institutions in the United States would undermine, not enhance, the fair and impartial treatment that all students deserve.

Suzanne B. Goldberg is a law professor at Columbia University. She is also director of the law school’s Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic.

A version of this article appeared in the January 18, 2019, issue

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