Betsy DeVos, Education Secretary under the Trump administration, has released a series of proposed amendments to the procedures of Title IX, education’s nondiscrimination act on the basis of sex. The proposed changes include an updated definition, budget re-organization and most controversially, the allowance of cross-examination of sexual assault and harassment survivors with those accused of assaulting them. Overall, the new regulation informs schools on their responsibility and legal obligation.
Cross-examination would allow the victim and the accused to answer clarification questions at the same time if their stories do not line up. The questioning would be conducted by experienced lawyers and both parties would be able to bring trusted friends and family. While Title IX applies to all federally funded education programs, cross-examination will only be required in post-secondary education. Kindergarten through high school will have the option and resources for cross-examination.
The new proposed definition of harassment is “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The administration cited Supreme Court precedent in creating this definition. This is a narrower definition than the one provided by the Obama administration: “unwelcome conduct of a sexual nature.”
Stacy Seger, from the Northwest Arkansas Women’s Shelter, explained the current standard procedures. “They don’t just tell their stories one time, they tell them many times, to many different backgrounds of people. They often end up sharing their story with an ally, a neutral listener, an opponent,” Seger said. “The way it is now provides sufficient questioning.”
Both sides argue about the effectiveness of gathering credibility in the hearing. Those in favor of cross-examination claim that live-hearings allow the fact-finder or adjudicator to discern the credibility of both parties. Opponents cite that the lengthy and repetitive process of reporting assault is unlikely to become more credible due to one live hearing. In most cases of cross-examination, the adjudicator will have prior access to a fact-sheet developed by a Title IX investigator. Opponents of the proposed changes are concerned about the potential damage that could be prolonged if survivors are exposed to further questioning and the mandate to see the accused face to face.
There are other concerns that the fear of being berated with questions and re-traumatized will prevent victims from reporting. This is especially a concern with younger victims. Survivors already have concerns about how the school will proceed after the original report, and will not want to feel that by being asked questions, their story is not trusted and believed.
The Department of Education requested written opinions about the proposed regulation and received 124,000 public comments. The department has spent much of the two years since they originally proposed the change reading the comments and deliberating with attorneys to avoid later litigation.
The final regulation is expected to be released this month. Many survivor advocacy groups are planning to take the regulation to court once released to prevent universities from implementing the new changes. Despite the controversy, DeVos says the importance of the regulation is that “every survivor must be taken seriously—but the accused can’t be presumed guilty.”