When the Department of Education issued its “Dear Colleague” letters during the Obama administration, there was no push for comments in support of the constitutional rights of the accused. That’s because nobody asked. In the hands of Russlynn Ali and Catherine Lhamon, the rules were whatever they decided they were.
Your comments didn’t matter. They were going to do whatever they wanted to do, and what they wanted to do was create a system that assured that any woman who complained would prevail and any man who was accused would lose. “Survivors” became the twisted characterization, so we would all feel their pain and suffering.
Now that the Department of Education has chosen to employ the Administrative Procedures Act, or what lawyers refer to as law, the window for comments before the regulations are final has given rise to a last-ditch effort. And the push is on before the window slams shut.
Betsy DeVos is betraying survivors of sexual assault and harassment on college campuses by neglecting their best interests, while doing everything in her power to help schools avoid accountability and resist responsibility. It’s shameful.
— Kirsten Gillibrand (@SenGillibrand) January 10, 2019
It’s not often you get a United States Senator calling the Constitution “shameful,” but Gillibrand has learned that blowing with the winds of fortune could make her president, which isn’t bad for a person who only won her senate seat as an incumbent.
As should be obvious at this stage, the vagaries of “betraying survivors” is about providing the accused with some minimal due process. One such right would be cross-examination, as held in Doe v. Baum, which was initially misrepresented by zealous, if less than honest, advocates to entitle the “accused rapist” to retraumatize his accuser by confronting her.
The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.
She’s got a point, although it likely doesn’t occur to her that her point militates against allowing colleges to run kangaroo courts that can destroy lives and forfeit fortunes. And Goldberg follows up with another good point.
One might think that colleges would voluntarily assign faculty members and administrators to take that responsibility. But it is one thing for a faculty or staff member to inform and support a student, as many currently do, and quite another to adversarially cross-examine a student who is also part of his or her own institution. Individual educators, as well as the college, may see this as conflicting with their responsibility to support all students.
Not only are faculty members grossly unqualified to perform the function of examining a witness, but are conflicted, whether because of their personal politics or their sense of duty to “support all students,” even if “all” doesn’t include the accused.
Still, the regulations would require institutions to provide students with an adviser to do the cross-examining if a student does not bring his or her own adviser to a hearing.
Again, her good point doesn’t militate in favor of eliminating cross, but in favor of providing an accused with an advocate who is both competent and unconflicted. Instead of acknowledging the obvious solutions to these obvious problems, Goldberg goes in the opposite direction.
But questions need not be adversarial to assess credibility. Nearly all courts to consider the issue have found fairness can be fully achieved through questioning by a neutral college administrator.
No cite is given, because no court has ever found that. But as much as due process, writ large, is under attack, Goldberg goes after the concept of confrontation itself.
More broadly, it is a serious question whether cross-examination is even effective in this setting. Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling. Research shows, for example, that a witness’s nervous or stumbling response to adversarial questioning is more likely an ordinary human reaction to stress than an indicator of false testimony.
Then again, challenging an accuser’s lies, exaggerations, distortions, could also explain their “stumbling response” because lying is another “ordinary human” thing to do. And if confrontation was wrong here, how can it not be wrong everywhere? If getting caught in a lie isn’t an indicator of false testimony on campus, why would it be in a courtroom?
Exacerbating the risks here, the proposed regulations would forbid institutions from relying on statements of students who decide they are unable, for emotional or other reasons, to subject themselves to cross-examination.
That’s pretty much the crux of the problem, that an accuser can’t accuse and then decide they are too fragile to be challenged, so just believe them and ruin the guy’s life.
But even if Goldberg’s last-ditch effort to promote this utterly nonsensical contention falls far below the threshold for rational argument, it remains a good thing that this time, under the current regime, there is room for argument. This time, there is an opportunity to comment, even if the comments are silly and false.
This time, unlike the protocol rammed down the throats of colleges and the men denied any opportunity to defend themselves in campus kangaroo courts because a couple of radical advocates decided to abuse their authority and manufacture a system designed to guarantee that men be punished, guilty or not, the rules are subject to review and comment.
Whether it’s the meaningless hatred of the Constitution expressed by Senator Gillibrand, or the strong argument by Professor Goldberg for eliminating campus sex tribunals altogether, they have a chance to express their views. That opportunity was never given under Ali and Lhamon.