As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it "strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing."
This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener's education, both in subjective and objective terms, according to court rulings like the Supreme Court's 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).
But a wrongly-accused person can’t establish that lack of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.
There is a fine line between protected speech about unpleasant sexual topics and unprotected sexual harassment, and it is crucial that accused people be able to prove that their speech did not amount to sexual harassment. Even sexually vulgar speech on political issues is protected on college campuses, as the Supreme Court’s Papish decision illustrates. And perfectly civil, non-vulgar students have been subjected to disciplinary proceedings for sexual and racial harassment, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, like criticizing feminism or affirmative action, or discussing the racial implications of the death penalty. (See the examples cited in the Amicus brief of Students for Individual Liberty in Davis v. Monroe County Board of Education, available at 1998 WL 847365.)
To fully defend themselves against sexual harassment charges over speech on sexual topics that doesn’t really amount to sexual harassment, people who are wrongly accused of sexual harassment will sometimes need to cross-examine their accuser to show that their speech did not really have any sexually harassing effect, and thus did not legally amount to sexual harassment, despite their accuser’s attempt to make a mountain out of a molehill.
The Education Department’s attack on cross-examination will lead to free speech violations, by resulting in students being convicted of harassment even when their speech did not create a subjectively-hostile environment, much less interfere with the accuser’s educational opportunities. If the speech has not created such an environment, it has not caused tangible harm, and cannot be banned merely because a hypothetical listener might have objected to it. One case illustrates this principle. In Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court struck down a religious small-business owner’s fine for religious harassment because the state agency’s harassment rule violated religious-freedom guarantees. Justice Unis, in his concurrence, noted that the rule also violated free speech, and was unconstitutionally over-broad, because it only required that the speech create a hostile environment for a hypothetical reasonable person -- not for the actual complainant, who did not need to experience a subjectively-hostile environment.
There is no uniform rule that people are constitutionally entitled to cross-examine their accusers in campus disciplinary proceedings in general (unlike in criminal prosecutions), but there are certain types of disciplinary proceedings where cross-examination can end up being constitutionally required. In cases like Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds when it was essential to test the credibility of the accuser.
Sexual harassment cases commonly turn not only on such credibility disputes, but also on the complainant’s alleged subjective emotional state, which makes cross-examination far more essential than in the ordinary campus discipline case. (By contrast, other kinds of disciplinary cases often turn solely on objective events that can be verified without any cross-examination of the accusing witness.) So the Education Department’s attack on cross-examination in sexual harassment cases may well result in many violations of the Constitution’s Due Process Clause, in addition to exceeding its legal authority under Title IX.
Even if it did not violate the Constitution, the Department of Education’s assault on cross-examination would still be unjustified, since cross-examination has justly been called “the most powerful engine for the discovery of truth ever devised by man." In sexual harassment cases brought in court, the defendant invariably has the opportunity to cross-examine the accuser, because courts recognize that cross-examination is useful in exposing false allegations.
The erosion of due process safeguards will also have a negative effect on sexual misconduct cases in general. Discipline based on false accusations is already much too common. As former Massachusetts ACLU leader Harvey Silverglate notes, many universities, such as Stanford, the University of Virginia, Brandeis and Washington University, have altered their disciplinary procedures in sexual harassment and assault cases under pressure from the Education Department’s Office for Civil Rights. But “even before" that, "a number of students around the country were found guilty in campus tribunals on sexual assault charges, only to be later vindicated. At George Washington University, a student found guilty of sexual assault -- despite the eyewitness testimony of his three roommates that the encounter was consensual -- is now suing the school for $6 million in damages. The University of North Dakota found a student guilty of sexual assault, but refused to reopen the case even after state authorities charged his accuser with filing a false police report.” I earlier discussed why the Education Department was wrong to force schools to alter the burden of proof in sexual harassment and assault cases.
Cato Institute attorney Ilya Shapiro and FIRE lawyer Greg Lukianoff argue that the erosion of due process protections resulting from the Education Department's pressure on schools will interact with broad campus sexual harassment policies to undermine basic principles of free speech.