This Note argues that in employing the Mathews v. Eldridge test to formulate the constitutional minimum process necessary to satisfy the Fourteenth Amendment in a Title IX university disciplinary hearing, federal courts have failed to adequately weigh the inevitable harm to survivors that will result from allowing one accused of sexual assault to personally cross-examine their accuser as part of the government interest at stake. Furthermore, this Note contends that any institution permitting the practice of respondents cross-examining their complainants commits sex discrimination in violation of Title IX by directly inflicting harm on its female students. Part I will provide an overview of how federal courts’ interpretation of Title IX evolved to protect students against sexual violence and harassment from their classmates and how courts have applied the Fourteenth Amendment to disciplinary hearings at public institutions of higher education. Part I will then largely focus on two recent appellate court decisions diverging on the degree of a respondent’s entitlement to cross-examination in these hearings. Part II will then examine the psychological effects of the retraumatization victims face when forced to confront their attackers in proceedings, the gender bias that may result, and how these considerations effect the Mathews analysis. Finally, Part III will assess the proposed rule offered by the Department of Education for its fairness and ability to prevent systemic gender-based bias and will offer an alternative solution for protecting the due process rights of the accused.
Further Harm and Harassment: The Cost of Excess Process to Victims of Sexual Violence on College Campuses,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss4/13