Bad Evidence Plus Bias: NCHERM’s Tip

It should come as no surprise that colleges occasionally turn to consultants to keep them abreast of the latest way to game Title IX campus sex policing, so as to avoid liability and bad public relations. Brent Socolow’s NCHERM is one of the cottage industry living off the largesse of ever-increasing tuition to pay the freight.

One of NCHERM’s services, apparently, is a tip of the week, and this one’s a winner.

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.

What are colleges being told is wrong with cross-examination?

[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.

This may be the first time anyone has ever argued that “more and better evidence” is a bad thing, but more to the point, it’s “more and better evidence.” So the point is that cross-examination accomplishes exactly what it’s supposed to accomplish? How . . . awful?

But the argument goes from the sublime to the ridiculous fast.

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.

So cross produces better evidence, but even better evidence won’t overcome the inherent bias at colleges to convict, to ignore the evidence no matter how strongly it proves innocence? And this confession required no rubber hoses to beat out of NCHERM.

What makes this particularly notable is that NCHERM has admitted the dirty underside of universities’ approach to Title IX, biased against the male. To the extent Socolow’s group is right, there is no evidence, no amount or quality of proof, that will overcome colleges’ decision to ignore it, to overlook it, to convict no matter if the accused male is guilty or completely, utterly, totally innocent of wrongdoing. If the goal is to convict, convict they will.

This is not a strong argument in favor of Title IX campus sex policing.

Then again, it’s not as if NCHERM has a firm grasp of what cross-examination is about.

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 cross-examination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.

This reflects the depth of understanding one gets from watching random episodes of Law & Order, but falls a bit shy of even the most shallow lawyerly grasp of what cross does. It’s not about the Perry Mason moment where the witness drops to the floor sobbing, confessing her lies and begging for mercy. It’s not about the “conceit” of human “lie detectors.” It’s about asking the hard questions when conflicting stories have been given, when excuses for failure to keep one’s story straight, when accusations defy the laws of physics.

But even Brent “Blind Squirrel” Socolow gets one thing right.

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.

Not only will a male student’s mother approach her child’s accuser in a less than genteel fashion, but lacking the experience and skill to perform a surgical, focused cross, she’s unlikely to get that “more and better evidence” that NCHERM concedes, then denies, then challenges. Almost as if to simultaneously demonstrate the error of its tip, no Tiger Mom forced NCHERM to write this confession, and yet it exposes myraid wrongs and failures with the scheme of Title IX campus sex adjudications.

Of course “more and better evidence” is more and better evidence. Of course the bias that infects these proceedings remains a reason why you can’t put quasi-judicial determinations in the hands of the Inquisitors. And cross-examination should obviously be done by someone qualified and competent, no matter how much mom (and dad) loves junior. And to add yet another level of failure, their tribunals are made up of faculty and administrators who wouldn’t know relevant evidence if it bit them in the butt anyway.

The irony here is that these arguments don’t militate against the changes to the regulations, but demonstrate why colleges shouldn’t be in the sex-policing business at all. And if they are, despite the fact that they can’t let go of their prejudice against the presumptive rapists, then the absolute minimum that should be done is to give the accused a fighting chance to defend themselves from false accusations.

And that’s why due process must be provided, and yet won’t be sufficient to make these subconstitutional campus tribunals produce fair and legitimate outcomes. Thanks for the tip. Brent.

Bad Evidence Plus Bias: NCHERM’s Tip curated from Simple Justice