An Erroneous Shift in Perspective: How Cross-examinations Forsake Constitutional Jurisprudence and the Purpose of Title IX

Abstract

Congress enacted Title IX for the purpose of curving and preventing sexual discrimination in public educational institutions. In promoting those goals and not risk federal funding, public universities must cure hostile environments according to guidance the Department of Education provides. However, focus shifts depending on the administration currently setting guidelines. These inconsistencies in Title IX compliance has brought about the issue of what process is due in public university sexual misconduct proceedings. Schools are caught in the fragile position of having to protect the victims from continued harassment while, at the same time, providing adequate Due Process to the accused. The executive branch, however, is not alone in the struggle to determine what process is due in public university sexual misconduct proceedings. In 2016, the Sixth Circuit in Doe v. Baum held that were the credibility of the student is at issue, the university must provide the accused student an opportunity to cross-examine the accuser through an agent of choice. Most recently, the First Circuit decision in Haidak v. University of Massachusetts-Amherst declined to follow Baum’s categorical rule and instead focused on whether there was adequate notice and an opportunity to be heard. This article argues that cross-examinations, although reasonable in the criminal justice system, should not be required in public universities based on the factors outlined in Mathews v. Eldridge and the lessons learned in Goss v. Lopez. It also takes the position that the Court should follow the First Circuit’s decision in Haidak because it provides a constitutionally consistent framework that also protects the victims. Moreover, cross-examinations are not required as a matter of public policy when taking into account the adversarial nature of cross-examinations, their impact on the victims, and the potential increase of liability to schools.