In a recent blog post, we mentioned how some of the details of the upcoming amendments to the regulations surrounding Title IX were being leaked from the Department of Education. Those leaks have given us a glance into what those amendments will be, and how they will change the enforcement of Title IX law.
One of the most important details that has emerged is that the new amendments will explicitly give accused students the right to cross-examine their accusers. Advocates for victims of sexual assault claim that it's a huge setback that must be stopped. But the amendment would only codify accused students' basic due process rights.
Proposed Cross-Examination Rights Seem to Have Survived
Last year, when the Department of Education first set out to roll back the changes to Title IX law that had encouraged sexual assault survivors to come forward, one of the regulations that the Department proposed was a requirement that colleges allow accused students to cross-examine their accusers.
The proposal triggered a strong response from sexual assault survivor advocacy groups. They claimed that these cross-examinations were too traumatic. By forcing victims to relive their experience and having their word challenged in a hearing, fewer victims would come forward. The proposal was one of the most controversial in the Department's overhaul of Title IX law, and some of its critics had hoped that it would be retracted during the comment period.
Leaked details of the soon-to-be-revealed final version of the Title IX amendments, though, suggest that the provisions requiring cross-examination opportunities have survived and will become law.
Guarantee Would Just Codify Currently Recognized Due Process Rights
Advocates for victims of sexual abuse claim that the inclusion of an accused student's right to cross-examine their accuser would be a travesty. It would force victims to relive the trauma of an assault. It would make victims think twice about coming forward. It would be unprecedented.
All of these criticisms ignore the fact that the U.S. Constitution guarantees due process to people who have been accused of wrongdoing. That right to due process gives people accused of wrongdoing the opportunity to defend themselves against the allegations being levied against them.
Federal appeals courts – most notably the 6th Circuit in the case Doe v. Baum – have held that an integral part of those due process rights is the ability of a student accused of sexual misconduct to cross-examine their accuser whenever the case hinges on the credibility of the parties.
Including this right to cross-examination in Title IX law doesn't change the law. The right to cross-examine an accuser in a sexual misconduct case comes from the Constitution.
Title IX Defense Lawyer Joseph D. Lento
Joseph D. Lento is a Title IX defense lawyer and a national Title IX advisor who represents students, faculty members, and college staffers who have been accused of sexual misconduct in violation of Title IX. With his legal representation, you can fight back against the allegations and preserve your future. Contact him online or call his law office at (888) 535-3686.