Earlier this month, a three-judge panel at the court handed a major victory to those who have claimed U-M’s process has been slanted toward the accuser in these investigations. The court said U-M violated the due process rights of a student by not offering him the opportunity for direct questioning of the person accusing him of sexual assault. The ruling was seen, by both victim-rights groups and those advocating for those accused, as a landmark decision.
U-M said in a court filing last week that mandating that universities allow direct cross-examination in a live hearing could lead to all sorts of problems.
The ruling raises a host of issues, from the mandate that a live hearing be provided, to the accuser being physically present and compelled to present her own testimony rather than the conclusory testimony as provided by a third-party investigator on her behalf, to the accused being provided the opportunity to confront his accuser and cross-examine her.
The University of Michigan is right, this could lead to all sorts of problems. The reason is fairly obvious: colleges are not now, nor have they ever been, equipped to adjudicate accusations of heinous criminal conduct. That it’s not a criminal proceeding, nor does any accused go to prison based upon a campus adjudication (provided there isn’t a parallel criminal prosecution), hardly addresses the exceptionally severe consequences or the taint that follows and destroys lives.
“Requiring universities to allow cross- examination by counsel will convert disciplinary proceedings into full-scale adversarial hearings, with the university forced to preside,” U-M wrote in the filing. “Moreover, the panel opinion introduces new opportunities for unfairness, with economically advantaged parties likely represented by counsel, and others essentially appearing pro se or with only nonlawyer family members or support persons.”
The argument begs the question, by claiming the school is “forced to preside.” This is false. Colleges choose to sex police their students, upon threat of loss of federal funding, based upon a false assumption that Title IX mandates them to elevate every allegation into a potential violation. It doesn’t. It never has. They do so because they choose to do so. To claim they’re forced to do so is a lie.
The second argument, an appeal to social justice based upon the accurate fact that “economically disadvantaged” students will lack the ability to retain counsel is the only easy fix in the bunch. If colleges want to prosecute them within their adjudicatory system, they can provide or fund counsel for anyone unable to afford his own. Regardless, that some accused might be denied due process isn’t a reason to deny due process to everyone. The solution to fairness isn’t to deprive it equally, but to provide it.
Fortuitously, we’ve just gone through the experience of observing a person try to “cross” a person alleging a sexual assault in a forum that failed miserably to serve its function. And consequently, we’ve seen the fallout, the two sides of useful idiots proclaiming the win.
While the format under which Rachel Mitchell worked was exceptionally untenable to examine a witness, the fact remains that even a lawyer can struggle with appropriate questions, tone, follow-up and tactics. Cross isn’t easy, and one would be hard-pressed to imagine a college sophomore whose life is on the line being capable of doing it effectively.
As problematic as a “real” trial may be, the alternatives are invariably worse. A Senate hearing can’t pull it off, and a college disciplinary board is even less capable of managing a fair process for the adjudication of so serious an accusation.
Tweaking around the edges, by requiring a live hearing, requiring examination of competent witnesses (meaning non-hearsay accounts from investigators) merely scratches the surface. There are still no rules of evidence, no competent judge to grasp what’s material and relevant from what fits the narrative. Even the arguments about burden of proof, preponderance or clear and convincing, is too amorphous for a French lit prof to apply.
Adding lawyers to the mix certainly turns the proceeding into more of a “full-blown adversarial proceeding,” but still falls far short of a proceeding competent to reach a valid decision upon which to inflict such severe punishment on an accused. Even the best cross by the best lawyer will only serve as well as the adjudicator’s grasp permits.
While this decision is certainly better than the alternative, an inquisition by a trained-to-be-biased investigator, and takes a monumental step forward toward due process, the reality is that there are no answers that will assure the fairness of the proceeding and the legitimacy of the outcome to be found on a college campus.
There is an answer, and it’s one that has been apparent from the start but denied by the litany of excuses wrapped up in the narrative: we build courthouses to try cases, with real rules, real evidence and real judges applying real law. That some accusers prefer not to go that route doesn’t change the fact that there is no viable alternative.
There is no “half-pregnant” way to try a case, to find and adjudicate facts and impose the harsh punishment that goes with it. As much as qualms exist in the fairness of real trials, they are dwarfed by the failings of campus trials. If punishment is to be imposed, and it is, then we need to stop denying the obvious, trying to build a campus Rube-Goldberg machine to provide exceptionally poor process when we have a mechanism established that society has determined provides a somewhat better way.
Much as the Sixth Circuit’s shift improves a terrible mechanism for destroying lives, it still falls short (as it invariably will) of due process by allowing colleges to do what they will never be capable of doing. We have courts. Use them.