Quote of the Day:
In the past two years, groups representing sexual-assault accusers have insisted that they only want a fair process, not one that railroads accused students. Their response to the regulations proposed will provide a test of their sincerity.
–KC Johnson and Stuart Taylor Jr. in this morning's Wall Street Journal
IWF Senior Policy Analyst Inez Feltscher Stepman has an excellent post up on Ed Secretary Betsy DeVos' proposed new Title IX regulations. The regulations are designed to respond to accusations of sexual misconduct on college campuses.
Inez explained that the Title IX rollbacks will protect, rather than endanger, civil rights.
Now, KC Johnson and Stuart Taylor Jr., stalwarts in the battle to uphold due process for the accused, who rose to national prominence on the issue when the Duke lacross players were falsely accused of rape, have a piece on the subject in the Wall Street Journal.
Johnson and Taylor, coauthors of "The Campus Rape Frenzy: The Attack on Due Process at America's Universities," praise DeVos for keeping her promise to design regulations that create more just procedures when campus tribunals adjudicate such allegations.
Johnson and Taylor write:
The most significant proposed change involves cross-examination, a fundamental element of due process. The Obama administration had strongly discouraged schools from allowing cross-examination of an accuser. “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” Anurima Bhargava, an Obama Justice Department official, told the Journal this August. That’s a presumption of guilt.
State and federal courts alike have held that the resulting processes are unconstitutional. In a case from the University of Michigan this September, the federal Sixth Circuit Court of Appeals ruled in favor of an accused student.
“Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Judge Amul Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The Supreme Court, quoting legal scholar John Wigmore, has repeatedly described cross-examination as “greatest legal engine ever invented for the discovery of truth.”
The proposed regulations would apply that principle nationally. They would require live hearings in all Title IX cases, with lawyers or other advocates for the accused conducting cross-examinations of witnesses. Cross-examination can’t be effective unless accused students as well as accusers have access to all evidence—routinely denied to accused students under current practice.
DoVos' proposals also have protections for the accuser. There are limits on raising questions about the sexual history of the accuser and "preponderance of evidence" will still be permitted. Taylor and Johnson point out that schools will still have reason to lean towards the accuser to mollify the media and activist groups.