The Selective Shield of Due Process: Analysis of the U.S. Department of Education's 2020 Title IX Regulations on Live Cross‐Examination

Abstract

AbstractThe U.S. Department of Education (DoE) released new Title IX regulations in May 2020, including the requirement that postsecondary institutions conduct live hearings with direct cross‐examination for sexual misconduct reports. The 2,033‐page document included a summary of public comments and the DoE's discussion of those comments. We analyzed this publicly available document to answer two questions. (1) What are the primary concerns of the cross‐examination requirement for victims within the Department's summary of public comments? (2) How did the Department respond to these victim concerns? We conducted a content analysis, with a specific focus on the DoE's summary of survivor‐focused comments regarding cross‐examination and the DoE's discussion of and changes made in response to those comments. We identified four overarching survivor‐focused concerns and four categories of DoE responses. Our findings suggest that the DoE did not meaningfully address survivor‐focused concerns, but instead, selectively wielded “due process” as a shield to deflect critiques and legitimize the myth that sexual misconduct allegations inherently lack “credibility.” The lack of protections for victims is a significant departure from legal norms in other settings. Our findings identify the importance of legislators working with survivor‐activists, practitioners, and researchers to ensure complainants receive adequate procedural protections.