The College Fix

But double jeopardy is back on the table

Cross-examination in sexual-misconduct adjudications was optional in an earlier draft of the Trump administration’s proposed overhaul of Title IX regulations.

But according to sources “familiar with” a later draft who talked to The Wall Street Journal, colleges would be required to let accused students cross-examine their accusers.

It would be a circumscribed form of cross-examination in two ways: Questions could be “funneled through a neutral party and students could be seated in separate rooms,” and accused students would be blocked from asking “inappropriate questions,” such as about their sexual history.

This is in line with recent court rulings, particularly from the 6th U.S. Circuit Court of Appeals, which ordered public colleges in its jurisdiction to allow either accused students or their agents, such as lawyers, to cross-examine their accusers.

Another change from a previous draft that leaked: The Trump administration would retain an Obama administration rule that allowed double jeopardy against accused students, letting accusers appeal adverse rulings.

MORE: Draft says biased treatment of accused students violates Title IX

The earlier draft allowed appeals only for accused students, the same as the criminal justice system, which hears many of the same claims brought in Title IX proceedings that have little in the way of due process.

Unlike a proposed Department of Health and Human Services regulation, the Education Department would not define sex in Title IX under the new regulations, according to the Journal:

Trump administration officials are now looking at issuing a legal opinion through the Justice Department stating the administration’s belief that gender under Title IX is determined by a person’s genitals at birth, according to people familiar with their thinking.

But issuing such an opinion, without writing the definition into formal regulations, would put the government on weaker footing.

The proposed regulations will not be offered for notice and comment before next week’s midterm elections, though some officials had advocated that as an election boost for Republicans, “according to people familiar with the matter.”

Read the article.

MORE: Ed official answers supporters of accused students who pan Title IX draft

IMAGE: 20th Century Fox Film Corp/EverettCollection

Like The College Fix on Facebook / Follow us on Twitter