Update: Claremont McKenna College published its new interim Title IX policy March 12. The policy includes a live hearing at which students’ advisors, including lawyers, will be permitted to cross-examine witnesses, including the accused and accuser. The accused and accuser will not be permitted to conduct cross-examination directly.
The hearing will be led by a hearing officer or team of hearing officers selected from an internal group of trained individuals selected by the Title IX officer. The Hearing Officer will determine if the accused is responsible for sexual assault, and must approve any questions the accused and accusers’ advisors plan to ask prior to the hearing.
Claremont McKenna College’s process of investigating sexual assault accusations made against its students will likely include a live hearing with cross-examination between the accuser and the accused after the policy is updated later this month.
The changes are expected to align CMC with other California colleges, which are in the process of altering their Title IX policies in response to a January court ruling that found the University of Southern California at fault for not providing a student accused of sexual assault with the opportunity to cross-examine their accuser.
The list of colleges implementing changes include Claremont McKenna College, Occidental College, the University of California system and the California State University system, The Los Angeles Times reported.
CMC spokesperson Peter Hong confirmed the policy will be updated later this month, but declined to specify what the new policy will be. If the new language complies with the recent ruling, though, it would mark a significant shift from CMC’s current Title IX policy, which does not require a live hearing with the accused student and accuser both present.
The California appellate court that issued the ruling against USC cited “fundamental fairness” for both parties involved as the reasoning for its decision.
Universities must “provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means … before a neutral adjudicator with the power independently to find facts and make credibility assessments,” the court ruled.
The ruling appears to allow cross-examination via a neutral intermediary, rather than directly by the students or their appointed representatives, according to the Times. It’s unclear whether CMC will implement direct cross-examination or cross-examination through an intermediary.
Under current CMC policy, both students are interviewed by an outside investigator who issues a report and findings based on the interviews. Both students are able to request that the investigator ask certain questions of the other party, but the investigator is not obligated to ask them.
The USC ruling also prohibits the investigator from issuing a finding of responsibility.
Advocates for survivors of sexual assault have long worried that cross-examinations in live hearings will discourage survivors from reporting incidents of sexual assault, Inside Higher Ed reported.
Other experts worry that colleges are ill-equipped to conduct court-style hearings.
“We’re looking at a potential fiasco,” Brett Sokolow, the president of the Association of Title IX Administrators, told the Times. He emphasized in the Times article that cross-examinations in court rooms are conducted by trained professionals and governed by strict rules, and that colleges are unprepared to conduct such proceedings.
Some of the 5Cs already have Title IX policies that include a live hearing with both students, but none of them permit cross-examination and therefore all appear to be in violation of the new ruling.
Pomona College and Harvey Mudd College did not respond to TSL’s request for comment. Scripps College’s and Pitzer College’s Title IX coordinators issued a joint statement through Scripps spokesperson Carolyn Robles, in which they did not directly address the USC ruling but did not announce any plans to change their policies.
The expected changes would come after CMC recently faced a lawsuit over a previous Title IX policy. In August 2018, the 2nd District Court of Appeals upheld a ruling that a CMC student — who was found responsible for sexual assault under a previous Title IX policy and sued the school — should have been entitled to a hearing at which adjudicators were able to question his accuser.
Under the CMC policy in place at the time — which was no longer in place at the time of the USC ruling — a hearing was held to determine whether the student accused of sexual assault was responsible. But the accuser was not required to attend, and no cross-examination took place.
The changes that the various California colleges are implementing are similar to new federal recommendations issued by President Donald Trump’s administration.
In November, Secretary of Education Betsy DeVos proposed new Department of Education rules that would mandate direct cross-examination by representatives of the students involved, who could be lawyers or other advocates.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” she said in a Department of Education press release. “Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
Sokolow told Inside Higher Ed that such a situation could heavily favor wealthy people accused of assault, who might be able to hire skilled lawyers, over accusers without the resources to hire such representation.
DeVos claimed a move toward hearings is necessary to ensure due process and equal protection for both students.
In their statement to TSL, Scripps and Pitzer addressed the Department of Education guidelines, rather than the ruling in the USC case.
“If final regulations are issued, as expected sometime in 2019, Pitzer and Scripps will make any
changes to our policies that are required in order to comply with federal law,” Robles wrote. “In the meantime, the colleges do not anticipate making any changes in response to the draft regulations.”