Brett Sokolow criticizes live hearings and cross-examination, suggests there may be ‘clever work-arounds’

January 15, 2020

Today in Inside Higher Ed, higher education risk-management specialist Brett Sokolow shares his thoughts on the changes coming to campus sexual misconduct adjudications when the Department of Education issues its new Title IX regulations. While he says that “[p]erhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications,” he is highly critical of the Department’s plan to require universities to resolve sexual misconduct cases through live hearings with cross-examination. Like so many in higher ed, Sokolow views campus sexual misconduct adjudications as merely “educational resolution processes” — a view that disregards the catastrophic, lifelong consequences students face when they are found responsible for sexual misconduct. 

Sokolow writes that cross-examination and live hearings are “potentially very detrimental to the cause of sex and gender equity in education,” stating that they are likely to reduce reporting by victims. This is why, he argues, so many of the comments the Office for Civil Rights received on its proposed regulations (which, unlike the 2011 Dear Colleague letter, were properly put through a public notice-and-comment process) opposed these provisions: 

Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges.

This is an area where FIRE disagrees profoundly with Sokolow. Sexual assault is one of society’s most heinous offenses, and a finding of responsibility — even outside of a court of law — carries severe and lasting consequences, such that labeling the process “educational” is totally inappropriate. 

Students expelled for sexual misconduct are virtual pariahs when they seek admission to other universities, and those closer to graduating frequently lose job and graduate school offers as well. Depression, anxiety, and even suicide attempts are common. Last spring, Families Advocating for Campus Equality (FACE), a nonprofit due process advocacy organization founded by parents of students found responsible for sexual misconduct without a fair process, submitted testimony in opposition to a proposed California law concerning campus sexual misconduct adjudications. FACE’s testimony included numerous examples of the impact of a finding of responsibility for sexual misconduct, even “just” in a campus judiciary:

  • “[M]y son was left suicidal with severe mental illness. Two extensive hospitalizations, three lost semesters at school, $90,000 in out of pocket losses and the complete loss of his hopes, dreams and possibilities.”
  • “We have spent nearly $320,000 in legal expenses, doctors’ bills, and medication. My son’s current mental health issues have been diagnosed as a direct result of the trauma imposed upon him by flawed processes, bullying by school and administrators and friends. Four and a half years later, acquaintances still call him a rapist. Today, he suffers from PTSD with debilitating anxiety that prevents him from work and study.”
  • “Our son became depressed, couldn’t sleep, couldn’t eat, lost 25 pounds in two months, and became suicidal. He would call me crying — I would answer the phone and hear breathing and sobs. I found him one day trying to hang himself.”

All of this is not to say that students who commit sexual misconduct should not face serious consequences — they absolutely should. But the seriousness of the consequences underscores the need for an adjudication process with meaningful procedural protections like a hearing with the right to cross-examination. Universities may not like the fact that such procedures are more formal and complex than what they were doing before, but the stakes are simply too high for anything less. 

And while Sokolow claims that “no research indicates that cross-examination creates more accurate results” than other forms of adjudication, the one article he cites for this proposition is inapposite, as it focuses exclusively on the limits of cross-examination in eliciting eyewitness testimony in mistaken-identification cases. The article itself acknowledges that cross-examination is good at proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination; the author’s argument is that in mistaken-ID cases, there are not usually “remaining facts known to the witness.” This is a wholly different context from that of campus sexual misconduct cases, where — in the absence of witnesses — the credibility of the two parties, and the completeness of their respective narratives, are often determinative.

Sokolow also expresses concern about the fact that the proposed regulations would “remove the ‘soft ban’ on mediation of sexual violence it implemented in 2011.” Interestingly, a number of university administrators with whom I have spoken — including those in victim support roles — have expressed to me their desire for a mediation option, stating that in the alcohol-fueled, ambiguous situations that often lead to campus accusations, many students’ preference would be for some kind of meaningful conversation and acknowledgment that someone else’s actions caused them pain. 

What really surprised me, though, was Sokolow’s statement that “many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence.” Where is his concern over colleges and universities investigating and adjudicating allegations of violence, particularly without the types of procedural safeguards that protect against the introduction of error and bias into the process? If colleges’ ability to handle these matters is a concern when it comes to mediation, shouldn’t it be doubly so when it comes to investigation and adjudication?

One thing Sokolow is absolutely right about is that, following the issuance of the new regulations, there is likely to be litigation on both sides (particularly if, as Sokolow suggests, schools find “clever work-arounds” to avoid implementing provisions they don’t like!). FIRE will be here to bring you all of the latest developments as the fight for due process on campus continues.