Bad Evidence Plus Bias: NCHERM’s Tip

It should come as no surprise that colleges occasionally turn to consultants to keep them abreast of the latest way to game Title IX campus sex policing, so as to avoid liability and bad public relations. Brett Socolow’s NCHERM is part of the cottage industry living off the largesse of ever-increasing tuition to pay the freight.

One of NCHERM’s services, apparently, is a tip of the week, and this one’s a winner.

Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.

They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.

What are colleges being told is wrong with cross-examination?

[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey.

This may be the first time anyone has ever argued that “more and better evidence” is a bad thing, but more to the point, it’s “more and better evidence.” So the point is that cross-examination accomplishes exactly what it’s supposed to accomplish? How . . . awful?

But the argument goes from the sublime to the ridiculous fast.

The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.

So cross produces better evidence, but even better evidence won’t overcome the inherent bias at colleges to convict, to ignore the evidence no matter how strongly it proves innocence? And this confession required no rubber hoses to beat out of NCHERM.

What makes this particularly notable is that NCHERM has admitted the dirty underside of universities’ approach to Title IX, biased against the male. To the extent Socolow’s group is right, there is no evidence, no amount or quality of proof, that will overcome colleges’ decision to ignore it, to overlook it, to convict no matter if the accused male is guilty or completely, utterly, totally innocent of wrongdoing. If the goal is to convict, convict they will.

This is not a strong argument in favor of Title IX campus sex policing.

Then again, it’s not as if NCHERM has a firm grasp of what cross-examination is about.

Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.

The conceit of humans believing they are lie detectors undergirds the belief that cross-examination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.

This reflects the depth of understanding one gets from watching random episodes of Law & Order, but falls a bit shy of even the most shallow lawyerly grasp of what cross does. It’s not about the Perry Mason moment where the witness drops to the floor sobbing, confessing her lies and begging for mercy. It’s not about the “conceit” of human “lie detectors.” It’s about asking the hard questions when conflicting stories have been given, when excuses for failure to keep one’s story straight, when accusations defy the laws of physics.

But even Brett “Blind Squirrel” Socolow gets one thing right.

I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.

Not only will a male student’s mother approach her child’s accuser in a less than genteel fashion, but lacking the experience and skill to perform a surgical, focused cross, she’s unlikely to get that “more and better evidence” that NCHERM concedes, then denies, then challenges. Almost as if to simultaneously demonstrate the error of its tip, no Tiger Mom forced NCHERM to write this confession, and yet it exposes myraid wrongs and failures with the scheme of Title IX campus sex adjudications.

Of course “more and better evidence” is more and better evidence. Of course the bias that infects these proceedings remains a reason why you can’t put quasi-judicial determinations in the hands of the Inquisitors. And cross-examination should obviously be done by someone qualified and competent, no matter how much mom (and dad) loves junior. And to add yet another level of failure, their tribunals are made up of faculty and administrators who wouldn’t know relevant evidence if it bit them in the butt anyway.

The irony here is that these arguments don’t militate against the changes to the regulations, but demonstrate why colleges shouldn’t be in the sex-policing business at all. And if they are, despite the fact that they can’t let go of their prejudice against the presumptive rapists, then the absolute minimum that should be done is to give the accused a fighting chance to defend themselves from false accusations.

And that’s why due process must be provided, and yet won’t be sufficient to make these subconstitutional campus tribunals produce fair and legitimate outcomes. Thanks for the tip, Brett.

23 thoughts on “Bad Evidence Plus Bias: NCHERM’s Tip

  1. Nigel Declan

    Socolow and his ilk should call this the Ron White defense, since it basically boils down to “you can’t fix stupid.”

    1. SHG Post author

      In a better world, you wouldn’t put decision-making into the hands of “stupid.” It’s unclear whether Socolow can’t figure this out or it’s just not in his enlightened self-interest.

      1. Nigel Declan

        The funny thing about the land of the blind is that its populace has no way to tell whether the man who seeks to be king actually has one eye or is merely an impostor claiming to be able to see. Or, perhaps, they simply don’t care.

        1. SHG Post author

          Blind Peoples: Got an eye?
          Putative King: [Ponders question for a while.] Sure. Yeah, sure I do.
          Blind Peoples: Well then, all hail.

  2. ShootingHipster

    I can see how someone with such a strong bias against evidence would believe that evidence can’t overcome bias.

    1. rojas

      Hell, it’s worse than that. In addition, his main argument against cross is that skilled and competent cross will uncover a litany of other process failures. It’s absolutely bazaar.

      Fabricated analogy to another discipline.
      We placed some of these new air bags in the environmental chamber and ran an accelerated southern states profile. Yea, what were the results? A couple of them detonated sending shrapnel through the test dummies. No shit! Hell, we need to take that thermal profile out of our product validation test or else we’ll never get this product launched.

      It would would be interesting to see a Process FMEA from these experts.

        1. rojas

          I saw that the Doe vs Ole Miss due-process challenge regarding biased training and biased training materials was allowed to proceed. I wonder if they purchased the materials at the one stop Title IX compliance store?

          Investigator In a Box. Get yours right here! Don’t be shy now, step right up. Come on now, make room for the little lady folks.

          1. SHG Post author

            I believe that was either the 130th or 131st loss for the Dear Colleague letter. Apparently, judges don’t share Socolow’s legal insight.

  3. RedditLaw

    I have a question for D. Meyer-Lindenberg if he is lurking here today. Is there a German word that encapsulates the meaning of “Making a fatuous reference to a television courtroom drama to avoid confronting a serious legal issue”?

    1. David Meyer-Lindenberg

      I do not lurk! I tower! And hell yeah: Gesetzundordnungsanspielung

      Also, the phrase “replete with an opportunity” pains me. Like dating someone who isn’t Canadian.

  4. MonitorsMost

    Colleges aren’t going to pay for nonsense consultants if they aren’t worried about DOE threatening to pull funding because they aren’t expelling enough boys. Nurture ‘em is just trying to make sure revenue streams stay open.

    1. SHG Post author

      DoE never pulled the plug on any college, so while it’s not an unreal threat, it’s also not particularly real either. But they can get slaughtered on social media if they become the targets of the mob, and when OCR started announcing it was investigating colleges for violations, the fear of consequences got real very quickly.

  5. rxc

    You don’t understand. They do not accept your preferred version of civilization, and they are doing everything they can to change it. That is what the word “progressive” means – a progression from the current system, which is unfair (in their eyes) to something that is fair to everyone. And in their eyes, cross-examination is extremely unfair, especially when it involves the downtrodden. It does not arrive at the decisions that they support, so it has to be rooted our, or at the very least, changed to make it more fair for the least capable.

    And their idea of fair is not yours, or mine.

      1. rxc

        Once again, you do not understand. Their definition of “everyone” is “everyone that they care about”. You definitions do not count, for them. Same thing with the word “fair”. They have been corrupting the language for decades, in order to make this happen.

        Have you never read Alice in Wonderland?

  6. Tom Moran

    As I was reading this post, the International Criminal Court acquitted the former president of Ivory Coast of crimes against humanity in a civil war that cost thousands of lives. What is relevant to this post is what the Central and West African director of Amnesty International said:
    Marie-Evelyne Petrus Barry Amnesty International’s West and Central Africa Director reacted to the ruling, calling it a “crushing disappointment” to the victims.
    “The acquittal of Gbagbo and Ble Goude will be seen as a crushing disappointment to victims of post-election violence in Cote d’Ivoire,” she said in a statement.
    “However, the judges found that the Office of the Prosecutor had not presented evidence needed to prove its case beyond reasonable doubt… This ICC ruling reminds us that fair trial and due process must be at the heart of international criminal justice.”
    The necessity of fair trial and due process ought to be carried into college campuses and their disciplinary investigations of allegations of sexual assault. Fair trial and due process must be at the heart of the system

  7. Matthew Scott Wideman

    The person who wrote this can’t be a practicing attorney. I have done it (very few times) and seen others absolutely destroy someone with even the small contradictions in their stories. The effect on the judge and the jury is damaging to the other side. Kind of why we get paid better than TSA agents.

    Only people who want to destroy the system believe such nonsense.

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