At The Washington Examiner, Hans Bader has a good editorial summarizing some legal concerns about the new Department of Education sexual assault guidance on which I earlier offered thoughts. Bader notes that the Guidance discourages universities from permitting accused students and accusers from personally cross-examining one another. Although language would permit cross-examination by lawyers or other advocates who represent accused students, many college students are unable to afford lawyers, meaning that this restriction could have a huge effect in chilling cross-examination. Indeed, not all colleges and universities permit lawyers to appear in disciplinary proceedings; Swarthmore’s rules apparently forbid accused students from even discussing their cases with an attorney.

Bader also quotes language from the guidance that bars universities from inquiring into an accused student’s sexual history with anyone other than the accused. He notes that this language is much broader than rape-shield laws like Federal Rule of Evidence 412, which permits “evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence” and “evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor.” Such evidence is potentially highly relevant in some sexual assault cases. Take a case in which a female student has physical evidence of penetration, but the accused male student denies that the act ever took place. Establishing that the victim had consensual sex with another man which could cause the same physical effects would be highly relevant to determining the truth of the accused student’s story. Although such evidence is admissible in federal court under Federal Rule 412,  it would not be in a college disciplinary proceeding under the new guidance.

Finally,  the OCR Guidance also again states that Title IX requires that colleges and universities use a “preponderance of the evidence” standard in adjudicating sexual harassment or assault cases. This claim is not new to this Guidance; OCR first made it in an April 4, 2011 Dear Colleague letter. But the administration’s legal reasoning was widely criticized then, so it is all the more troubling to see OCR double down on the claim.