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We are on the cusp of a new regulatory regime in Title IX, which will change many aspects of how colleges and universities evaluate and adjudicate claims of sexual misconduct. In 2022, the federal Department of Education’s Office for Civil Rights (“OCR”) issued a notice of proposed rulemaking, giving notice of its intent to revamp the regulations promulgated under the Trump Administration—which themselves were intended to undo the effects of guidance issued by the Obama Administration’s OCR. The new regulations are likely to take effect as soon as March 2024 (so if reading this post in the future, do so with caution—this is law that is rapidly changing, and when the regulations do take effect, they may be changed somewhat from the proposal I describe here).
One particular political football in the Title IX regulatory universe is cross-examination. Women’s groups have long painted cross-examination as “retraumatizing” and insisted that requiring it will “deter[] [complainants] from coming forward at all. The Obama administration was very responsive to these concerns and generally did not encourage cross-examination, and favored (but did not require) a “single investigator” model where there simply is not a hearing, just an investigation that results in a decision or recommendation by the investigator. The Obama administration did not engage in significant Title IX rulemaking, other than limited regulations to effect changes to the Clery Act that took effect in 2015, and instead relied on less formal guidance.
Under the Trump administration, the Obama administration’s guidance was largely revoked, and replaced in 2020 by new regulations with the force of law. The 2020 regulations not only permitted, but required, actual live hearings, with cross-examination of all witnesses, including both complainants and respondents. The regulations struck an odd balance, forbidding students from directly cross-examining one another, but requiring cross-examination to be conducted by their advisors. They also required an investigation, much like that involved in a single-investigator model, but then also required a hearing. Those regulations were praised by men’s rights advocates and by some civil liberties advocates, but heavily criticized by women’s groups, some of which sued to prevent them from going into effect. Those lawsuits were largely unsuccessful, except for one in which a federal judge in Massachusetts enjoined so much of the regulations as prevented decisionmakers from relying on statements by any witness who did not submit to cross-examination.
So this is the current state of the law: if you are accused of violating Title IX, you are entitled to a hearing at which your advisor can cross-examine your accuser. To my mind, the most important part of this entitlement is not the cross-examination, but the opportunity to appear, in person, before the person deciding your case, and be heard. Before the 2020 regulations, several schools used a single-investigator where the investigator would write a report and then a decision would be made by an administrator or panel working from a paper record, without ever meeting either party or hearing from any witness. Any form of hearing is an improvement. But cross-examination is also a valuable tool, although the current system—in which many students are not represented by actual attorneys but by lay advisors who may not be skilled at cross-examination and with whom they do not have any form of legal privilege—has real disadvantages.
As noted above, though, this state of the law is unlikely to last for long. The proposed new regulations would permit live hearings and advisor-conducted cross—but not require them. They would allow parties to propose questions for one another and for witnesses to the decisionmaker or investigator. Submitting questions to an investigator is very different than live cross-examination; it doesn’t allow you to craft the exact form in which a question is asked, or, critically, to follow up if the witness’s answer is evasive or not responsive to the question. In some cases, it is better not to question a witness than to do it under these circumstances. Most schools in Massachusetts are likely to accept the changed regulations’ invitation to do away with live hearings and revert to a single-investigator model. It is notable, though, that in Massachusetts, at public institutions, the First Circuit has held that there must be some “mechanism for confronting the complaining witness and probing his or her account” and some form of examination—though the First Circuit has suggested that it is sufficient for the fact-finder to do the examining. However, “When a school reserves to itself the right to examine the witnesses, it also assumes for itself the responsibility to conduct reasonably adequate questioning.” If public colleges in Massachusetts do away with advisor-conducted cross examination, as I think is likely, I would expect to see litigation about whether the questioning they substitute for it is constitutionally adequate. In other jurisdictions—particularly the Sixth Circuit—federal courts have found a more robust cross-examination right at public institutions. The new regulations will, then, likely lead to disparities in the rights afforded to students, based both on location and whether their schools are public or private.
The thought that I will close with is that cross-examination is only one part of the picture of convincing a decisionmaker of the truth of your case, and despite the political focus on it, it is not always the most important part. Whether in a single-investigator or live hearing model, a lawyer’s help can be critical to persuading a decisionmaker. If you are facing allegations of sexual misconduct or harassment, contact me to set up a consultation.
