U.S. Secretary of Education Besty DeVos announced colleges must hold live testimony hearings with cross-examination in campus sexual assault cases on May 6, according to an article by the Detroit Free Press. The new requirement is a part of DeVos’s new Title IX regulation and these policies will begin Aug. 14.
A press release by the U.S. Department of Education redefined sexual harrassment as unlawful sex discrimination and includes sexual assault, dating violence, domestic violence and stalking.
“The new Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students,” the release said.
Other key provisions of the new reglation include holding colleges responsible for off-campus sexual harassment at houses affiliated with school-sanctioned fraternities and sororities and ensuring survivors are not required to divulge any medical, psychological, or similar privileged records. Most notably, it fortifies students’ right to a written notice of allegations, the right to an advisor and the right to submit, cross-examine and challenge evidence at a live hearing.
“This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process,” Devos said. “We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
DeVos explained the new Title IX regulations through a video Wednesday morning. She said the new changes ensure that both parties are treated fairly.
“No student should be made to feel alone or abandoned by their school,” DeVos said. “No incident should ever be swept under the rug and no student or teacher accused should be punished before evidence proves responsibility.”
Public Policy junior Emma Sandberg, founder and executive director of Roe v. Rape, said even though the policy change requires all sexual harrassment casses affiliated with school-sanctioned fraternities and sororites to be reviewed, the policy does not require educational institutions to invesigate reports of sexual misconduct that happened in non-school affiliated buildings.
“That would be totally devastating to any victim of sexual assault to go in to report what happened to them if it’s their apartment a few blocks from campus, then find out that the University won’t investigate it,” Sandberg said. “I’d like (University of Michigan policy) to state that they will investigate all sexual assault on- and off-campus.”
In 2018, a sexual harassment claim was filed against John Doe, resulting in Doe withdrawing from the University in fear of expulsion. Doe’s lawyer filed a lawsuit stating that John Doe did not receive the right of cross-examination, therefore he had his constitutional rights violated. In the case of Doe v. Baum, the U.S. Court of Appeals required the University to allow cross-examination in sexual assault cases, which sparked backlash and protests among the University community. This policy was taken to court, and it was ruled that not allowing cross-examination was unconstitutional.
Sandberg noted that while the change was implemented at the University, many colleges nationwide did not have a Title IX policy that included cross-examination. Therefore, the new policy designed by Devos’ Department of Education would lead to a drastic change, according to Sandberg.
Cross-examination in Title IX cases has been noted to be a traumatic experience to parties involved. In a Detroit Free Press article, a Western Michigan University student was asked during her hearing to demonstrate the position in which she was assaulted.
In an interview with the Detroit Free Press, the female student said the experience was traumatizing.
“The questions that they asked me were respectful but painful,” she said. “I had to attend or the boys would be found not responsible.”
Current University policy states that cross-examinations are typically conducted between the Claimant and Respondent, not a third party. However, the new national Title IX policy requires cross-examination by counsel.
Sandberg said she feels the new policy does provide some protection specific to the University.
“Since we already have cross-examination, they will at least require that personal advisors or attorneys ask the questions, and currently that’s not the case,” Sandberg said. ”Ironically that aspect of the regulations do align with what us students have been advocating for… it does help U of M students just because our policy is so terrible as it stands now.”
Attorney Deborah Gordon represented Doe in Doe v. Baum. Gordon noted she was not supportive of the University’s decision for peer cross-examination.
“I didn’t understand why they had this rule that you could only do direct-cross examinations,” Gordon said. “I think this is far better. When you’re talking about these kinds of incidents of misconduct, if someone wants to have a representative there, (then) it’s better. It’s an emotional thing.”
However, Gordon said she believes cross-examination at the University level is necessary and is an important part of due process, especially because the outcomes can drastically change a person’s life.
“What the University of Michigan has done, as a lot of universities — they’ve made the stakes so high because, really, they have an unspoken policy that if there’s penetration, you will be expelled,” Gordon said. “No matter what the facts are — no violence, no coercion — whatever it is, you will be expelled… You have to have due process of law.”
Gordon also said it was important to ensure a fair trial among both parties and not place women in a special category.
“It’s wrong to say women are in a special category, and they can’t come in and ask questions and answer questions,” Gordon said. “You can’t make women seem like (they are) not worthy or capable of a due process procedure of law… Once that kind of thing starts to happen, women are diminished in the eyes of future employers. There’s a lot of ramifications.”
In email to the Daily, University spokesman Rick Fitzgerald said it will take time for the administration to fully understand the regulations and how they will affect University policy.
Summer Managing News Editor Jasmin Lee contributed to the reporting of this article.
Summer Managing News Editor Francesca Duong can be reached at fduong@umich.edu