From the law, we’ve distilled several key ethical principles: due process takes many forms, depends on the stakes, requires a balancing of interests, and does not change based on the content of the allegation. How should we put these broad principles into practice for handling sexual harassment allegations? What would a fair procedure built on them look like? Alas, I cannot offer a single policy, down to the nitty-gritty details, that would work for every school and workplace, synagogue and social club. While that would certainly be a satisfying payoff for the many pages that got us here, a one-size-fits-all model would be a betrayal of a central tenet of fair process: context matters. Different organizations and institutions will always need to adjust the particulars based on their unique combination of resources, capacity, goals, and values.
Still, some basic features of due process, drawn from centuries of court opinions and practical experimentation, should be a part of any institutional procedure that responds to an accusation of harm by one person against another—including sexual harassment—and could result in substantial sanctions like termination or expulsion. (Less significant sanctions and temporary interventions, like an interim suspension pending investigation, don’t require the same level of careful evaluation.) These features include the following:
These core ideas provide the foundation for fair adjudication procedures that every institution can build on. Beyond these basics, though, no one can offer a perfect universal process. And there is legitimate debate to be had about the specific form some of these requirements should take.
ONE TOPIC THAT has attracted particular attention in the debate about how schools should handle sexual harassment is whether the institution should provide a live hearing to test an accusation against a student—and if so, what that should look like.
Some legal background: in its 1975 opinion Goss v. Lopez, the Supreme Court addressed the rights of students facing school discipline. The court was sensitive both to the importance of the students’ access to education and to the special context of the schoolhouse, where discipline can serve an instructive purpose and resources are limited. Its decision invoked the basic principles of due process: a student facing a ten-day suspension “must be given some kind of notice and afforded some kind of hearing.” This hearing did not need to look like a trial—with cross-examination and the opportunity to present witnesses—because, as the justices saw it, “even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness.” The court, however, left open the question of whether stronger protections might be necessary for a longer suspension or an expulsion. For the last half-century, lower courts have been slowly filling the gap, but their rulings sometimes conflict. So there is currently no neat legal answer for what school disciplinary procedures should look like when they may lead to the most serious sanctions.
The first step toward answering this question is to identify what’s at stake. An accused student doesn’t face incarceration, but he might be suspended or expelled. So, while we know the process doesn’t have to look like a criminal trial, the stakes are significant. Then we should identify the broader interests. The accused has an interest in staying in school; so does his alleged victim, whose education may be stalled if she cannot safely attend class and participate in campus life because she fears further harassment. The school and broader campus community have an interest in the outcome, too: they want to promote equality on campus, protect other students, and make sure neither student is unjustly deprived of an education. And, as a final step, we should reframe the question as applying to all complaints that implicate similar stakes and interests, rather than considering sexual harassment as a singular kind of accusation. The same process should apply to hazing, physical assaults, harassment based on race or disability, and other kinds of harms students inflict on each other that may result in long-term suspensions or expulsion.
With those principles in mind, we can look at the options. At many schools, as at most workplaces, no live, adversarial hearing is provided. Rather, an investigator or set of investigators—perhaps external hires or HR employees—gather evidence, interview witnesses, consider each side’s account and refutations of the other’s story, and prepare a written report. The investigators, or a separate board of decision-makers, then come to a conclusion about what they think happened and what the consequences will be.
This approach has its benefits and has been endorsed by the American Bar Association’s Commission on Domestic & Sexual Violence. From a school perspective, an investigatory model may be less onerous than setting up a full hearing. It’s less formal and more easily administered by nonlawyers. And it’s less likely to intimidate the participants, some of whom might have just experienced a serious trauma. A process that is comfortable for witnesses is good in itself: no one wants to further traumatize a student, and many victims will refuse to report altogether if the process is too daunting. But intimidation also matters because some of what we take as physical or verbal signs that a witness is lying, like stumbling testimony, may instead simply be evidence that she is nervous. A decision-maker may wrongly disbelieve a truthful witness simply because she was anxious about an adversarial hearing, and come to the wrong decision as a result. Robyn Swirling, who helps organizations develop their sexual harassment policies, is confident that investigators can figure out all they need from thorough interviews with involved parties and witnesses. “Abusive people,” she warns, can manipulate the process and use a hearing “as part of their abuse.” She believes meetings attended by both parties are only productive at the point where the facts are established and a conversation might be useful for establishing a remedy—not to hash out what happened.
Still, there are good reasons you might choose a hearing. Hearing boards are frequently staffed by multiple people, while investigations are more often conducted by just one, which provides more room for a single person’s biases to shape the outcome. Most importantly, some attorneys feel that the opportunity to challenge a witness’s testimony in real time is irreplaceable. Sure, in an investigator model, each side should have an opportunity to review the other’s statement and evidence and point out any holes or errors. But that’s much less effective, many feel, than the opportunity to pose questions to a witness during a live hearing and follow up to clarify answers or advance a particular theory.
That, in turn, raises questions about how cross-examination should occur at a hearing. With only a few exceptions, a defendant in a lawsuit almost always has the opportunity for his attorney to question witnesses, including his victim. But many institutions are skeptical of importing this courtroom model into their own disciplinary procedures. For one thing, students in disciplinary hearings do not have a federal right to a free attorney (there’s nothing akin to a public defender requirement), and few schools can afford to provide such services. Sometimes, as a result, neither student has a lawyer; sometimes only one party can afford an attorney, which can put them at a large and unfair advantage if the lawyer plays an active role in questioning. So schools have to figure out who will conduct any cross-examination.
Almost all are reluctant to allow parties to directly question each other, and for good reason. Such inquisitions are a recipe for trouble. As Swirling warns, wrongdoers can use a process to further their abuse. Imagine a rapist questioning his victim about what she wore the night of the assault, what he did to her, and whether she cried afterward. Some schools instead permit parties to choose a nonprofessional representative, like a professor, friend, or parent, to conduct the questioning. But these nonprofessionals, too, can promote disorder. An accused student’s frat brother may be an intimidating examiner for a victim and may not know (or care about) the school hearing rules. In all of these different options, some administrators worry that a questioner will misbehave to bully the other side, and the school will have little recourse to constrain them. Unlike a trial judge, a school cannot threaten unruly participants with “contempt of court” in the form of fines or jail time.
Plus, there isn’t much reason to think cross-examination will actually be an effective truth-seeking tool when in untrained hands. A nineteen-year-old won’t have the training or experience to know, for example, how to phrase a question clearly, or how to get a witness to answer a line of inquiry they’re trying to evade. And because we confuse nervousness with lack of credibility, the panic an unprofessional questioner induces in a witness may promote inaccuracy in the decision-making.
For these reasons, among others, almost all federal appellate courts to weigh in on the matter have said that schools do not need to permit direct cross-examination. Rather, a board of administrators can collect lists of questions from the student accused of misconduct and from the complainant. After screening out inappropriate inquiries (“why are you such a slut?”), the administrators can pose each side’s questions to witnesses and the parties. That, the courts say, adequately protects the serious interests of the accused while also recognizing the unique context of student discipline. Many institutions and advocates prefer this approach, too.
Personally, I think full-fledged live hearings are unwise in K-12 schools where children are involved. But for adult students, I do think universities should provide some kind of hearing, which, when done right, can promote truth-seeking and help ensure that everyone involved feels heard. Some wealthier schools have considered the trade-offs and—wisely, in my view—designed hybrid models that incorporate the best parts of each approach. (At the time of my writing, these models are mostly forbidden by Trump administration rules, which I’ll discuss shortly, and which I expect President Biden will replace.) For example, an investigator might collect evidence and testimony for a report, which a board would read. That board would then speak directly to the parties at a hearing, which would occur via videoconference so the students are physically separated. The hearing would still permit only indirect cross-examination by the parties through questions submitted to the panel, so that the students would not interrogate each other directly. My concerns about direct cross-examination would diminish, though not disappear, if both students were provided a trained attorney, whose employment depends on good behavior. But such a guarantee is impractical for most institutions.
In short, there’s no perfect, all-purpose answer, on this or other nuanced procedural matters. But I hope that the four ethical principles I’ve identified, culled from a long legal tradition, offer a starting point for thinking about these kinds of hard questions about how to treat each other fairly.
A QUICK NOTE: readers might notice that a disproportionate number of my examples of fair process controversies, in this chapter and others, concern schools. From my experience and research, that is the site of our most developed, detailed debate about what fair process outside of courts should look like. It’s no surprise that the conversation would focus on formal institutions with which almost all of us are familiar. That doesn’t explain, though, why the conversation about school discipline for sexual harassment is so much more detailed and extensive than the debate about workplaces. To be sure, there are plenty of think pieces decrying, in a general sense, the supposed transformation of the American workplace into a witch-hunting ground. But the public discussion about workplace harassment and fairness rarely touches on the actual procedures used by employers. There is no heated debate, for example, about whether private companies should permit employees to cross-examine their alleged victims.
The primary reason for this, I think, is that unfair workplace discipline overwhelmingly hurts workers who do not have access to wealth, media, and lawyers—exactly the workers who are least likely to inspire widespread public concern. I suspect we would have a better conversation about unfairness in the workplace if senior managers were the ones regularly fired after shoddy investigations. Those executives have access to attorneys and PR teams; they could sue their former companies and generate big newspaper headlines. The fallout might spark a detailed national debate, in legislatures, on op-ed pages, and around dinner tables, about the procedures that employers use to investigate and discipline workers.
Indeed, one reason why we have such a spirited conversation about procedures in schools is that rich white kids are sometimes the subject of discipline there. A single set of rules applies to all students, at least on paper. When these children of privilege are occasionally punished, they are natural objects of empathy in elite society. And they have the financial and social resources to fight back in lawsuits and in the court of opinion. Often, they hire from a growing cottage industry of lawyers and consultants who help students rehabilitate their images and get back into school after being suspended or expelled for sexual assault. With these resources, the young men win legal cases. Newspapers tell their stories in shocked tones.
But while school discipline—in theory, if not always in practice—imposes the same rules on the wealthy and powerful as on the poor and dispossessed, inequality is built into employment law. In private workplaces without unions, employees have few legal rights and can generally be fired for almost any reason. The exception is top-dollar corporate officers, who are often able to negotiate, as part of their contract, a range of privileges that includes protection from unfair termination. The cost of violating those agreements is so significant—and so much greater than the cost of a lawsuit by a harassment victim—that companies tread extremely carefully in disciplining top executives. Were top executives subject to the same procedures as their employees, they might insist on better protections for workers. But as it is, those with the most power to create change, at least in nonunionized workplaces, have little reason to complain. And so, as a public, we have much less to say about fairness at work than fairness at school. This book reflects that imbalance—but I hope that acknowledging its origins might help, in small part, to spur a corrective.