Cross-Examination in Campus Disciplinary Hearings

Nov. 2, 2022 By NMGL

The Sixth Amendment of the U.S. Constitution grants certain rights to all defendants in criminal cases, including the right to a timely public trial, an impartial jury, legal representation, and knowledge of the accuser’s identity. When college students are accused of campus sexual misconduct, they often assume the same standards apply to university disciplinary proceedings. However, these on-campus hearings are often very different from court proceedings – and the way they’re handled can vary across educational institutions.

Changing guidelines for colleges and universities

There’s no denying that campus sexual misconduct proceedings are grueling. Andrew T. Miltenberg, an expert student-rights attorney, has represented students in nearly 1,000 cases and each one had a profound effect on its participants. “These proceedings last months, or even years,” he explains. “It takes a toll emotionally.”

2011 letter from the Obama-era Department of Education (DOE) directed universities to prevent cross-examination during hearings. Some groups championed this guidance, noting that it could protect students from potentially traumatizing confrontations. However, other stakeholders argued that this practice made it more difficult for accused students to question evidence and uncover critical details that could prove their innocence.

During Donald Trump’s presidency, the DOE issued revised guidelines that gave all parties the right to cross-examine witnesses with help from an attorney. Furthermore, the 2020 guidelines directed schools to conduct live hearings as part of the investigative process. Miltenberg saw this as a crucial step forward.

“To be able to question a witness allows you to challenge or clarify their narrative in ways that cannot otherwise be duplicated,” he noted. “Cross-examination must be used to refine and exclude certain facts and ideas or to close certain possibilities.”

However, the rules on Title IX have changed again. The Biden administration issued new proposed guidance in June 2022 that is now making its way through the rule making process. This most recent round of changes from the DOE gives much more leeway to schools on how disciplinary hearings are conducted in cases of sexual misconduct.

Cross-examination is no longer guaranteed

Under the new regulations, live hearings are permitted, but no longer mandated in cases of sexual misconduct. Cross-examination, in which each party’s advisor has the opportunity to ask questions of the other party, is no longer required, either. When this practice is not in place, investigators and adjudicators may miss out on critical information from both parties involved.

“Cross-examination may sound offensive, but when you ask questions a panel or investigator wouldn’t ask, you learn things that change the nature of the interaction,” Miltenberg notes.

At the same time, schools have more latitude in the types of complaints they investigate. Previously, the scope was limited to on-campus incidents, but now institutions can open investigations into allegations that occurred off-campus. The regulations also permit a return to the model of a single investigator, in which one staff member may be tasked with investigating a complaint, conducting a hearing, and adjudicating the case all by themselves. That raises opportunities for bias and unfair administration of campus policies.

In addition, neither the current nor the proposed regulations outline any kind of timeline for resolving complaints and completing an investigation. “Most universities, in their policies, will tell you that they endeavor to get the investigation done in 60 to 90 days,” explains Miltenberg, “but as an office, we’ve done over a thousand of these, and I’ve never seen one get resolved within the 60-to-90-day timeframe.”

Students need expert legal guidance

Miltenberg’s concern is that implementation of the proposed guidelines may lead to a lack of due process on college campuses. “The justice system in the U.S. isn’t perfect, but there are fail-safes in place to test narratives and evidence,” he explains. “That gives us confidence that in most cases we arrive at the truth. Those same fail-safes don’t necessarily exist in these cases.”

Without the guarantee of cross-examination, it is more important than ever for students and their families to seek the support of an experienced legal team that understands how to navigate Title IX. If you or a loved one has been accused of campus sexual misconduct, you should seek help immediately. With offices in New York, Boston, and Palo Alto, Nesenoff & Miltenberg, LLP has extensive experience with Title IX cases. To learn more, contact Andrew T. Miltenberg today.