Supreme Court Justice Louis Brandeis once noted that “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”
However well-meaning it may be, the Obama administration’s “guidance” this week on campus rape and sexual harassment contains insidious attacks on cross-examination and due-process rights (as KC Johnson discussed at Minding the Campus.) As the White House Task Force Report notes (pg. 19), “this new guidance clarifies that: . . . the parties should not be allowed to personally cross-examine each other.” Similarly, the Education Department’s accompanying guidance says (pg. 31): “OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence.” These attacks by the administration ignore the Supreme Court's conclusion that cross-examination is the “greatest legal engine ever invented for the discovery of truth.” (See Lilly v. Virginia, 527 U.S. 116, 124 (1999).) The new guidance will create serious legal problems for both public and private colleges, as I will explain in future commentaries (colleges that do not follow the administration’s “guidance” risk having their federal funds cut off, and financial aid to their students terminated).
As I explained over a year ago, the Education Department’s attack on cross-examination has no legal basis, especially since cross-examination is permitted all the time in sexual harassment cases in court, showing that cross-examination is entirely consistent with the civil-rights laws. While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right has sometimes been afforded by state education codes, collective bargaining agreements, or other contracts or regulations. Title IX does not require that these be disregarded, contrary to the Obama administration’s suggestions. Indeed, as the Supreme Court observed in its Davis decision, a school is entitled “to refrain from” disciplinary action that “would expose it to constitutional or statutory claims,” without risking Title IX liability.
More importantly, in a handful of campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.
The Obama administration’s guidance also overreaches in demanding that schools alter the burden of proof they use in disciplinary proceedings. On page 25 it says, “The school must use a preponderance-of-the-evidence . . . standard in any Title IX proceedings, including any fact-finding and hearings,” rather than a higher standard, like the traditional “clear and convincing evidence” standard. The Obama administration previously demanded that schools stop using the “clear and convincing” evidence standard, in an April 4, 2011 “Dear Colleague” letter to the nation’s colleges and schools.
Under pressure from the Education Department's Office for Civil Rights, colleges are now routinely expelling students who are very likely innocent of sexual harassment or assault, see here, here, here, here, here, here, here, here, and here.
In addition to attacking cross-examination, the guidance would also violate due process by unfairly preventing a student from exonerating himself based on relevant “sexual history” evidence permitted by even the most complainant-protective rape-shield and sexual-harassment-shield statutes (like Federal Rule of Evidence 412(b)). Federal rules of evidence permit the introduction of physical evidence suggesting that “someone other than the defendant” was involved (in certain rape cases), and permit evidence in sexual harassment cases of the complainant’s “sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party,” such as whether the complainant earlier willingly engaged in a category of activity (such as sexual banter) that he or she later claimed to categorically hate engaging in. The Education Department’s new guidance flatly bans any questioning about “sexual history” with people other than the accused, which may or may not extend beyond physical sexual activity to things like verbal discussion of sexual fantasies, which could be highly relevant in some cases. On page 31, it says, “May the complainant’s sexual history be introduced at hearings? Answer: Questioning about the complainant’s sexual history with anyone other than the alleged perpetrator should not be permitted.”
The Obama administration’s attack on cross-examination will undermine accuracy in campus disciplinary proceedings. The subjective component of the legal definition of sexual harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).
But a wrongly-accused person may not be able to establish the absence of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks. There is a fine line between protected speech about unpleasant sexual topics and unprotected sexual harassment, and it is crucial that accused people be able to prove that their speech did not amount to sexual harassment. Even sexually vulgar speech on political issues is protected on college campuses, as the Supreme Court’s Papish decision illustrates.
And perfectly civil, non-vulgar students have been subjected to disciplinary proceedings for sexual and racial harassment, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, like criticizing feminism or affirmative action, or discussing the racial implications of the death penalty. (See the examples cited in the Amicus brief of Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, available at 1998 WL 847365.)
To adequately defend themselves against sexual harassment charges over speech on sexual topics that doesn’t really amount to sexual harassment, people who are wrongly accused of sexual harassment will sometimes need to cross-examine their accuser to show that their speech did not really have any sexually harassing effect, and thus did not legally amount to sexual harassment, despite their accuser’s attempt to make a mountain out of a molehill. The Education Department’s attack on cross-examination will lead to free-speech violations, by resulting in students being convicted of harassment even when their speech did not create a subjectively-hostile environment, much less interfere with the accuser’s educational opportunities. If the speech has not created such an environment, it has not caused tangible harm, and cannot be banned merely because a hypothetical listener might have objected to it. For example, in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court struck down a religious small-business owner’s fine for religious harassment because the state agency’s harassment rule violated religious-freedom guarantees. Justice Unis, in his concurrence, noted that the rule also violated free speech, and was unconstitutionally overbroad, because it only required that the speech create a hostile environment for a hypothetical reasonable person — not for the actual complainant, who did not need to experience a subjectively-hostile environment.
The Education Department also orders colleges to use the lowest standard of proof in disciplinary proceedings over alleged sexual harassment and rape, known as the preponderance standard. Historically, most colleges and universities used a higher, “clear and convincing” evidence standard in student and faculty discipline cases of all types, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987); see also Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 J. College & U.L. 71 (1985).) Contrary to the Education Department’s claims, Title IX does not require a lower standard of evidence.
I earlier explained why the Education Department’s demand that colleges lower the standard of proof is legally erroneous, violates the Administrative Procedure Act, and is not required by Title IX at this link. I explained at a separate link why courts should not defer to the Education Department’s “guidance” on this subject due to its procedural and logical flaws.
The demand that colleges lower the standard of proof was originally made in a 2011 Education Department letter to school officials, known as the “Dear Colleague” letter. Its demands were criticized by many legal scholars, law professors, lawyers, civil-libertarians, and journalists, as well as groups like American Association of University Professors and the Foundation for Individual Rights in Education.