Effective cross examination is a skill that often takes lawyers years, and a few sad trials, to achieve. But the wholesale absence of the opportunity to confront one’s accuser, to challenge their allegations, is an abrogation of one of the most basic components of due process possible. And that’s why Judge Arthur Tarnow held that the University of Michigan’s use of the single investigator model, beloved by the Lhamonites of the administration past, was unconstitutional.
Last month, U.S. District Judge Arthur Tarnow ordered the institution to arrange the live hearing, writing in his ruling: “[The university] essentially asks the court to sit back and wait for the investigator to issue findings against plaintiff before intervening in this action. But at this very moment, the university may be denying plaintiff due process protections to which he is entitled. The court cannot, and will not, simply stand by as the fruit continues to rot on the tree. This case is ripe for adjudication.”
And the Sixth Circuit similarly rejected this deprivation of due process.
Last year, the U.S. Court of Appeals for the Sixth Circuit, which encompasses Michigan, ruled similarly. In that case, the appeals court blocked the suspension of a male University of Cincinnati student because he had not been given the opportunity to question a female student accusing him of sexual assault.
While this may all seem too obvious for explanation to lawyers, the problem is that this is being fed to a cottage industry of non-lawyer Title IX advocates and administrators who lack the capacity to process its significance.
This ruling doesn’t mean that the accused student would be directly asking his accuser questions, merely that he be given the opportunity to challenge her narrative.
Under the single investigator model, colleges thought it sufficient to have their “Title IX-trained” investigator speak to accused and accuser, decide who is guilty** and then present their conclusion as a fait accompli. By extolling the fairness of the investigator, colleges insulate themselves from challenge. In some instances, the accused can pose questions to the investigator, as if the investigator could do anything more than repeat hearsay.
But even if the accused was given the opportunity to pose questions, the fear of trauma to the “survivor” means that they will go through an intermediary, who will ask the questions they deem relevant and proper, use the words they deem sufficiently sensitive and preclude any follow up.
Thus, the accused, who is already at the massive disadvantage of lacking the skills necessary to cross an accuser, is placed at the far worse disadvantage of having his questions subject to the approval of a sensitivity-trained intermediary. And even this required a federal judge to force into their paradigm.
Neither Title IX nor other federal law, such as the Clery Act (the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act), requires a live hearing. And so institutions have taken “shortcuts to justice,” said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with colleges and universities on Title IX.
Carter has the dual advantages of not being a lawyer, and being a simplistic dolt. He thus isn’t encumbered by either knowledge of law or the slightest grasp of how due process happens, which allows him to pretend to offer insight (and sell his services) on matters about which he knows nothing. And he’s one of the better voices in the Title IX cottage industry.
Carter said it can be challenging for universities to set up a system in which both parties ask questions, but it’s possible — they can use a third party, such as a “hearing officer” who would pose questions back and forth, or set up a video circuit where the victim is removed from the room of his or her alleged rapist.
Sometimes, though, college administrators will simply skip the questioning because it can become emotional — or because they simply want to control the process, Carter said.
Or it isn’t the least bit challenging, as the concept of challenging an accusation is a fundamental component to the determination of facts. It’s not enough that the accused is denied counsel at a hearing, who might possess the skill to effectively question an accuser since few college kids are adept at the art of cross-examination, but that even a ham-handed attempt to question the “survivor” is too horrifying to allow.
Contrary to Carter’s astute legal observation that Title IX “requires a live hearing,” Title IX doesn’t require every peer-to-peer allegation of sexual “impropriety” to be adjudicated by a college. But if colleges are determined to police every hurt, and punish it by expulsion plus the loss of hundreds of thousands of dollars of tuition paid, then the minimal due process demanded, even in administrative proceedings, is the lame opportunity of a college kid to ask questions of his accuser.
And yet, the rulings will be conveniently interpreted by colleges, and their Title IX enablers like Carter, to be satisfied by some inadequate compromise, when even a full and fair opportunity to cross an accuser would be laughably inadequate from any rational point of view?
*Tuesday Talk rules apply.
**The word “guilty” isn’t used, as they prefer the euphemism “responsible,” as if the semantics change the outcome.