K.C. JOHNSON: Title IX Has a Cross-Examination Crisis.

The Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Until recently, that lesson had failed to permeate the nation’s Title IX tribunals. Obama-era guidance “strongly” discouraged direct cross-examination between students accused of sexual assault and those making the accusations. Nearly all colleges and universities went further and prevented lawyers or advocates for the accused from asking questions of witnesses.

Only in the last few weeks have academic leaders explained in detail why they support denying accused students who face the most serious offense to come before most campus tribunals—sexual assault—the procedural protections associated with cross-examination. These arguments appeared in response to Education Secretary Betsy DeVos’ proposed Title IX regulations, which would mandate live hearings with cross-examination, with questions asked by lawyers or advocates for the students, in all sexual misconduct cases.

After several technical glitches, the comment period on DeVos’ proposed regulations closed last week. Comments submitted by college or university leaders provided unintentional insight as to why so many accused students have had to go to court to get fair treatment from their schools. More troublingly, the comments implied that most university leaders see promoting safety or encouraging reporting as a more important function of the Title IX adjudication process than determining the truth of each allegation.

It’s almost like it’s a mechanism for punishing men simply for getting in the way.