Jacques: Cross-exams new challenge for campus sex ‘courts’
Thanks to expanded roles under Title IX sex discrimination guidelines, university bureaucrats are going to be needing law degrees.
Campus investigations and hearings surrounding alleged sexual misconduct are increasingly mimicking actual courtrooms, posing some serious learning curves for administrators — and students — who find themselves caught up in the process.
Some of these changes are positive and have been mandated by federal courts. But as it’s playing out at several Michigan universities, the orientation is a challenge.
Cross-examination in these tribunals is now a must for Michigan institutions, following a decision last September out of the 6th U.S. Circuit Court of Appeals, which said this was necessary to maintain due process for the accused. That decision stemmed from a case out of the University of Michigan.
Similarly, the U.S. Department of Education is re-working its rules governing campus investigations to include cross-examination in some form.
In response to the appeals court ruling, UM reworked its policy to include cross-examination -- but the interim guidelines stipulate that the accused and accuser must cross-examination each other, and not rely on outside counsel to ask the questions for them.
Clearly, this could lead to very uncomfortable situations in which a young woman who believes she’s been assaulted must face questions directly from her alleged assailant. This could be equally challenging for an accused young man to navigate.
The ACLU of Michigan, along with the ACLU’s Women’s Rights Project, wrote a letter last week to UM, laying out their concerns with this framework, and they raise some valid points.
The ACLU says it supports the new requirements of a live hearing and the opportunity for cross-examination “to assess credibility where serious sanctions such as expulsion, suspension, or notation on a student’s permanent school record are possible.”
“But the interim policy requires students who file sexual misconduct complaints to undergo cross-examination conducted personally by their alleged abusers. While cross-examination is essential, this form is not,” the letter continues.
Instead, the ACLU recommends the students’ representatives conduct the questioning, and if students can’t afford a lawyer, the university should offer them counsel.
David Nacht, an Ann Arbor-based lawyer who has represented many students in campus trials, agrees this would be a fair way to handle cross-examination. In fact, he says many alleged victims already are getting aid from UM law students who are trained to help claimants.
While he wants to avoid creating a high-pressure courtroom setting that could intimidate students, having legal counsel conduct the examinations “increases the professionalism and makes it a better experience,” Nacht says.
Michigan State University has already changed its policy, Nacht notes. Students aren’t allowed to grill each other — they need an adviser to do that on their behalf.
UM didn’t want to create a situation where students could be questioned by lawyers -- especially since not all students may be able to afford one. The university allows cross-examination to be conducted in separate rooms via technology so students don’t have to be face to face.
With the introduction of cross-examination, universities should have a consistent way of handling hearings. Making sure students have access to qualified advisers seems the best way to avoid additional harm.
“If you don’t know what you’re doing, the process could be a mess,” Nacht says.