In what’s been called a “pathbreaking” and “profound” panel ruling, judges from the United States Court of Appeals for the Third Circuit on May 29 held that “fairness” as defined in colleges’ processes for investigating and adjudicating reports of sexual harassment means that students are afforded a live hearing and cross-examination process.
The three-judge panel concluded that if a college’s policy under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, promises a “fair” process to its students, as most do, the college must allow them to participate in “some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.”
This applies even if the student attends a private college, where constitutional due process guarantees are not applicable, according to the panel ruling, written by Judge David Porter. Requiring colleges to engage in such a process has been one of the main critiques of the new Title IX regulations issued by the U.S. Department of Education last month.