On Friday, Education Secretary Betsy DeVos announced a heavily anticipated overhaul of the procedures colleges use to deal with allegations of sexual assault and misconduct on campus.
But one feature of the new rules struck critics as unusual. According to The Atlantic, Betsy DeVos’s new protocol would allow students accused of sexual assault to personally cross-examine their accuser at a ‘live hearing.’
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” DeVos said in a press release. “Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
While DeVos’s ideas will gain traction in certain circles, The Atlantic spoke to higher-education attorneys who disagree with the secretary’s take on due process.
Attorney Scott Schneider, of Husch Blackwell, agrees that cross-examination is a “powerful tool.”
But Schneider, like others, stressed the limitations of putting victims on the stand.
“When people glibly talk about cross-examination being the greatest tool for discovering the truth in the history of the Western world, they obviously haven’t seen some attorneys do cross-examination,” Schneider said.
That’s due, in part, to DeVos’s stipulation that cross-examinations need not be done by accusers. Rather, students who can afford a lawyer can hire one to represent them in a hearing—an advantage which could skew outcomes along socioeconomic lines.
The New York Times notes that victims’ advocates haven’t taken kindly to the new rules, either. Some say the changes are an “overly aggressive rollback” of the steps taken by past presidential administrations to curb sexual violence on college campuses.
“We brought this hidden violence into the public eye, and we saw schools change their practices as a result,” former U.S. Vice President Joe Biden said in a statement. “These protections made students safer and gave parents peace of mind. Today’s proposed rollback would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence.”
And, as The Atlantic adds, advocates’ have often pointed out that cross-examination can be used as a tool to dissuade victims of assault from testifying in the first place.
Arguments for and against cross-examination hit the spotlight during Brett Kavanaugh’s Supreme Court confirmation hearing. President Trump and Kavanaugh’s other supporters claimed the prospective—and later confirmed—justice should have the opportunity to face his accuser.
“There is no better way to test the truthfulness of an accusation than by questioning the accuser during a live hearing,” said Justin Dillon, partner with KaiserDillon. “If colleges are going to adjudicate what are essentially crimes, then accused students deserve to have the tools to defend themselves effectively.”
DeVos’s proposed rules will be subject to a 60-day window allowing for public comment. If the regulations go into effect, they could be altered in intent and scope.