by Claude Opus 5.5
The 2020 Title IX rules Cornell used require live hearings with cross-examination by advisers. Does this protect respondents’ rights or retraumatise complainants? Can both be true?
Cornell’s hearing in this case ran for twelve days and heard from more than thirty witnesses. It was conducted under the Title IX regulations issued by the US Department of Education in 2020, which Cornell continued to apply to conduct occurring while they were in force. Those regulations require colleges to hold a live hearing in sexual harassment cases and to allow each party’s adviser to cross-examine the other party and witnesses. Parties may not question each other directly, and on request they can be in separate rooms connected by video. Questions about a complainant’s prior sexual history are generally excluded.
Before 2020, many colleges used a “single investigator” model, in which one official interviewed the parties and made findings without any hearing. The 2020 rules were a deliberate rejection of that model. They were controversial from the start, and the question this seminar asks is whether they were right.
The case for cross-examination
The central argument for cross-examination is that it is one of the best tools ever devised for testing evidence. In a dispute that turns on credibility, the fact-finder needs to see how each account withstands questioning: whether it is consistent, whether it fits other evidence, whether it changes under pressure. The American legal tradition has long treated cross-examination as a core element of due process, and several federal courts, notably the Sixth Circuit in Doe v. Baum (2018), held that public universities must allow some form of it where credibility is decisive.
For respondents, cross-examination is a safeguard against being found responsible on untested accounts. Without it, a single investigator’s judgement of who seemed more credible can determine whether someone is expelled. The stakes justify a process in which both sides can test the evidence against them.
Cross-examination also benefits complainants in some respects. A finding reached after the respondent’s account has been tested is more robust and more likely to be accepted by the community, and less likely to be overturned in court.
The case against
Critics argue that cross-examination in sexual misconduct cases can be deeply harmful to complainants. Being questioned in detail, often by a hostile adviser, about one of the most distressing experiences of one’s life can feel like a second violation. Even with protections against questions about sexual history, a skilled questioner can make a complainant relive the event, suggest she is lying, and highlight every inconsistency in her account.
There is also a deterrent effect. If students know that reporting will lead to a live hearing with cross-examination, some will choose not to report at all. This undermines the purpose of Title IX, which is to ensure equal access to education free from sex discrimination.
Critics also question whether cross-examination is as good at revealing truth as its defenders claim. Research on trauma suggests that inconsistencies and gaps in memory are common among genuine victims, and aggressive questioning can exploit these to undermine credible accounts.
Can both be true?
Yes, and recognising this is the key to thinking clearly about the issue. Cross-examination can protect respondents’ rights and at the same time impose serious costs on complainants. These are not contradictory claims; they describe a genuine tension between two legitimate interests.
The question is not which interest is real but how to balance them. Several approaches try to do this. Questioning can be conducted through the decision-maker, who rephrases questions submitted by the parties, rather than directly by advisers. Questions can be screened for relevance before they are asked. Parties can be separated physically and give evidence by video. Support persons can be present. These measures aim to preserve the evidential value of testing accounts while reducing the harm.
English law offers a comparison. In criminal trials, complainants in sexual offence cases are entitled to special measures, such as giving evidence from behind a screen or by pre-recorded video, and defendants are prohibited from cross-examining them in person. Questions about sexual history are tightly restricted. Cross-examination still happens, but within a framework designed to limit its harms.
A further point
The 2020 rules were later superseded by 2024 regulations, which gave colleges more flexibility to avoid live hearings; those were then vacated by a federal court in January 2025. This volatility is itself a problem. Students in different years have been subject to very different procedures, and both complainants and respondents can reasonably ask why their rights should depend on which administration was in office.
For discussion
If you were designing a hearing, would you allow cross-examination? If so, who would ask the questions, and what limits would you set? If not, how would you ensure that a respondent could challenge the evidence against them?