“Quis custodiet ipsos custodes?” (“Who watches the watchers?”)

– Juvenal

A recent dust-up between NCHERM Chair Brett Sokolow and due process advocates has spotlighted an important discussion on the need for cross-examination and solutions to bias among campus adjudicators of Title IX-related offenses. It has prompted me to reevaluate my position and consider alternatives to cross-examination, but only if certain conditions were met.

In a due process context, cross-examination is simply the right of the accused party – either on their own or via a representative (e.g., an advisor or attorney) – to ask follow-up questions of witnesses in a live setting in the presence of neutral decision-makers. For example, why did the alleged victim continue to date, lovingly message, and have sex with her “rapist” for months after the incident, only to accuse him of rape after he broke up with her? Does “trauma” explain her motivation, or something else? If school personnel won’t ask these hard questions, who will?

As the Sixth Circuit (Doe v. Baum, 2018) and other courts like the California Court of Appeals (Dixon v. Kegan Allee, 2019) have ruled, cross-examination is critical when adjudication hinges upon credibility determinations. This “he said/she said” is common in sex-assault allegations. Other courts have expressed strong concerns about faulty credibility determinations by schools.

Consider the Seventh Circuit’s Doe v. Purdue. During the oral argument Judge Amy Coney Barrett criticized the school for reaching a finding of guilt despite not even hearing from Doe’s accuser or even reading words she had written. The school had instead read a summary of accuser’s words written by a rape counselor who posted misandric articles on the university’s social media pages (hence the reversal of the lower court’s motion to dismiss decision for the Title IX claim). Two of the school’s three panelists who found Doe guilty openly stated they had not even read the summary report but still somehow found the accuser “more credible.”

The need to protect accused students from haphazard, biased, or sham credibility “determinations” is clear. In his LA Times article, however, Sokolow disagrees that cross-examination is necessary, arguing that while it is not an effective solution to bias, training is. He argues that creating additional layers of due process protections will “create greater confusion.” He then inquires, “when was the last time making any system more complex and bureaucratic made it better?”

He continues by saying that “substantive decisions will depend on having neutral and impartial decision-makers in place” and argues that procedural protections can be circumvented by biased decision-makers. I agree here; rights are just scribblings if those entrusted to protect them have deep-seated interests or prejudices which dictate ignoring them.

Cross-examination is a tool designed to fill a void where fact-finding procedures are critically deficient. Sokolow believes that training is an effective replacement tool. Of course, while training is necessary it is not a one-size-fits-all solution, nor even one-size-fits-most. Trainees with conflicts of interest have no incentive to heed training just as they have no incentive to respect due process.

And what if they do not heed the training? The counterbalance, Sokolow later clarified in a tweet, is that schools should terminate “anyone whose bias can’t be corrected.”

The critical flaw of Sokolow’s approach is that it relies too much on putting schools on the honor system. His “Train or Term” approach begs the question: what if schools do not wish to fire those with bias? What if Administrator A is motivated by gender bias against males, and his overseer Administrator B believes after crunching the numbers that treating respondents fairly is simply a financial risk too big to take? What if both are motivated by gender bias? What if Administrator B is unbiased, but is simply checked out and doesn’t care what Administrator A does?

Sokolow’s model has no solution to any of this.

Schools must be compelled to respect students’ rights. Putting schools on the honor system is what got us all in this mess to begin with. Most advocates regardless of their perspectives on policy agree with that, at least.

We must now shift gears, however. While Sokolow’s model of “Train or Term” (which conveniently rhymes with NCHERM…Sokolow can thank me later for the jingle) has a critical limitation, Sokolow is right when he says that cross-examination has limitations as well. Given the power schools enjoy, I am concerned that those limitations are more extensive than we have considered.

In an Inside Higher Ed article, Sokolow said of cross-examination and similar procedural protections that schools should “challenge them in court or find clever work-arounds.” Since closed-door proceedings afford school administrators an array of bureaucratic parlor tricks, it is inevitable that they will indeed find creative work-arounds. It is likely that Sokolow will be advising them on how to do so, and it is highly likely that they will get away with it, too. Not all the time, but often.

Cross-examination is empowered when synergized with other procedures that schools also lack, such as discovery and subpoena powers. For example, what if a conscientious but conflicted witness does not wish to testify against the accuser despite knowing the accusation is false? In a courtroom, crossing such a witness would be both possible and powerful. In a higher ed hearing, however, schools cannot compel such witnesses to attend the hearing.

Additionally, crossing an accuser would prove more valuable when the accuser is directly confronted with strongly damaging evidence which she was reluctantly required to turn over to the defense. Since there is no discovery process to compel production of evidence in a school investigation, accusers are largely put on the honor system when exculpatory evidence is in their sole possession.

Sokolow wants to simplify things out of the concern that cross-examination has limitations. I may have just the solution: in he-said she-said cases that come down to just credibility, OCR should simply require schools to find in favor of the respondent instead of performing cross-examination. We can’t fix bias with cross-examination, and we can’t rely on schools to do the right thing when put on the honor system, so we might as well respect innocent until proven guilty. And it makes sense; people’s lives should not be permanently derailed or ruined just on another’s say-so.

Under this proposed model, any school which finds an accused student responsible without allowing cross-examination to be performed would need to document (and be ready to present in their defense at discovery or to an OCR investigator) strong non-testimonial evidence supporting their determination that would satisfy a clear and convincing standard. OCR would also require schools to issue a summary of the decision-making process, with references to the evidence satisfying the clear and convincing standard, to both parties upon the exhaustion of all intramural appeals. Per OCR’s new requirement on documentation, such records would also need to be preserved for a minimum of six years.

Failure to meet these requirements should place schools in jeopardy of strong fines, damages, expungement of the student’s record, a reversal of the school’s finding of responsible, and so forth.

If the above conditions were regulatory, I’d feel better about letting go of cross-examination. But not otherwise. While training is one essential piece of the puzzle that cannot be overlooked, a “Train or Term” approach – when mutually exclusive with due process protections like live hearings and cross-examination – cannot terraform a due process wasteland. In practice, it is just another variation of the honor system, an outdated system whose time has passed.