Traditionally, it has been understood that campus sexual assault adjudications need not take on the formalities of the justice system. Since the consequences faced in campus adjudications are considerably less than punishments faced in the justice system, less process is owed under the Due Process Clause. However, in September 2018, the Sixth Circuit reconceived what constitutes due process in campus sexual assault adjudications in the case of Doe v. Baum. The court found that in cases involving conflicting narratives at public universities, the accused or his agent must have the ability to cross-examine his accuser in the presence of a neutral factfinder. On November 29, 2018, the Department of Education took Baum several steps further in a proposed rulemaking on Title IX, mandating cross-examination in all campus sexual assault cases at both public and private universities.
In this Comment, I argue that the proposed rulemaking on Title IX goes too far, misinterpreting the case law and the dictates of due process, while neglecting empirical evidence and foreseen adverse consequences. I argue that the proposed rulemaking misinterprets case law—most notably the recent Baum decision— by failing to appreciate important limits to the scope of compulsory cross-examination. I also unpack the vast negative implications of the proposed rulemaking, including drops in reporting rates and considerable institutional costs. As a result of these legal shortcomings and practical implications, I argue that the proposed rulemaking fails to pass the Mathews balancing test. As universities, the federal government, and courts determine how best to adjudicate campus sexual assault allegations, all efforts must be taken to minimize trauma to the victim, safeguard the rights of the accused, and protect the financial viability of educational institutions.
Symbolism Over Substance: The Role of Adversarial Cross-Examination in Campus Sexual Assault Adjudications and the Legality of the Proposed Rulemaking on Title IX,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol27/iss1/5