Does DeVos see ‘every hearing as a Perry Mason episode’?
Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.
They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”
A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.
In its latest “tip of the week,” the National Center for Higher Education Risk Management mocks Education Secretary “Betsy DeVos and her supporters” for supposedly arguing that cross-examination is “the panacea” for the problems in Title IX proceedings.
The Department of Education’s proposed Title IX regulation, which is open to public comment for another two weeks, would require these proceedings to allow cross-examination and exclude the testimony of any party or witness that refuses to undergo cross-examination.
The core problem in these proceedings “is actually rooted in bias and lack of training,” NCHERM’s unsigned six-page letter reads:
[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey. The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.
The Title IX field is riddled with “implicit bias” and those who make decisions in proceedings often possess “deficient analytical skills,” which requires “more and better training,” the group argued. When bias and deficient analysis intersect, “that multiplies the problem into confirmation bias,
which is much more difficult to unravel.”
In a paragraph that shows the group’s underlying disdain for advocates of due process, NCHERM alludes to the “greatest legal engine” quote:
Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.
The conceit of humans believing they are lie detectors undergirds the belief that crossexamination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.
The “tip” goes on to suggest talking points for readers when they submit comments on the notice of proposed rulemaking, including the “high risk of traumatizing the parties” through “adversarial” elements.
It asks what will happen when parents can actively represent their children in proceedings, rather than sit silently as hearing panelists and campus prosecutors grill the parties:
I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.
The tip also suggests that colleges will have trouble recruiting faculty and staff to serve as hearings officers and chairs when those people will be “doing battle with skilled attorneys on how a question should be phrased, whether it should be posed, and whether it was sufficiently answered.”
But it returns at the conclusion to emphasize that “this entire cross-examination blueprint could significantly chill victims from ever deciding to report sex discrimination and seek formal redress” – and “that seems to be” the intention of the department’s Office for Civil Rights.
Read the tip of the week, which was shared by the due-process group Stop Abusive and Violent Environments as a “good laugh.”