Last month, the Biden administration finally announced the Department of Education’s long-awaited rewrite of Title IX’s implementing regulations. The 1,500-plus page final rulemaking notice and the draft regulations released in the lead-up to it have been controversial at every step.
Much of the discussion revolves around the revised regulations’ definition of sexual assault and protections for transgender people. But what goes largely unnoticed are regulatory efforts that steer campus administrators toward the easy path of expelling or reprimanding students and employees accused of sexual misconduct.
Universities should be particularly wary of accepting invitations to trade, for the sake of administrative efficiency, the due process that is the cornerstone of our legal system and the fairness and robust fact-finding guaranteed by due process. . History teaches us that this trade-off is usually a bad deal for everyone involved.
Title IX of the Education Amendments Act of 1972 plays an important role in the education system by prohibiting discrimination on the basis of sex in all federally funded educational programs and activities. Institutions that accept federal funding (which includes nearly all American universities) are obligated to quickly and effectively address allegations of sex discrimination or risk losing federal funding. Although these institutions have the option of implementing more stringent due process standards, the revised Title IX regulations will allow institutions to provide minimum procedural standards for students accused of sexual misconduct. Now it can only provide protection.
University disciplinary procedures, often referred to as “grievance procedures” under Title IX, are by no means a trivial administrative matter. Students and employees found guilty of violating an institution’s code of conduct can face expulsion, revocation of diplomas, and other life-altering consequences, with serious implications. This highlights the seriousness of these cases and the need for careful consideration.
Three specific changes stand out as most threatening to fair fact-finding and fair decision-making: (1) Adoption of a single investigator mode in which one employee can serve as both investigator and final decision maker. (2) eliminate adversarial live hearings; (3) lowering the standard of proof of default;
The most important concern for procedural fairness and accuracy in fact-finding is that the Campus Title IX Coordinator serves as investigator, campus prosecutor, and ultimate fact-finder and decision-maker in the same matter. It is now possible to do this. This is somewhat deceptively referred to as the “single investigator model.”
The DOE argues that “requiring a separate employee to handle investigations and adjudications is burdensome.” perhaps. But such burdens pale in comparison to the risks such models pose to accused students. Getting it right and ensuring that the final decision is informed and accurate should become even more important. Among other things, this reduces litigation and outcome uncertainty in the long run.
In this regard, campus administrators can currently choose to eliminate the right to live trial-like hearings with cross-examination of defendants and the right to introduce expert testimony. Apart from producing uncertain results that are unverified by either an adversarial process or a neutral fact-finding body, the single investigator model combined with the termination of meaningful hearings as a matter of right is It would be a magnet for constitutional challenges, especially for public schools.
For example, in Doe v. Bohm et al., the Sixth Circuit held that “If a public university must choose between competing narratives to resolve a case, the university may The following judgment must be rendered.” [1] Opportunity to cross-examine accusers and adverse witnesses [2] in the presence of a neutral fact-finder. ”
DOE notes that allowing cross-examination could re-traumatize complainants, give unfair advantage to those who can afford an attorney, and even scare individuals away from reporting wrongdoing. is undoubtedly correct. But these concerns reflect only one side of the equation. Adversarial processes also come with very clear and established advantages.
In the words of the famous 20th century jurist John Henry Wigmore, cross-examination is “without a doubt the greatest legal tool ever invented for discovering truth.” After all, as the Bohm decision emphasized, relying on cross-examination to resolve dueling narratives is fundamental to our justice system. The DOE notes that while schools retain the option of voluntarily choosing to use an independent fact-finder, due process should not be optional.
Finally, under DOE’s revised regulations, liability determinations are based on a lower evidentiary standard, a “preponderance of the evidence” (sometimes referred to as “50 percent plus feathers”), rather than an evidentiary standard. There are also speculations that this will happen. The more demanding “clear and convincing” (i.e., likely) criterion.
We urge administrators to weigh the evidence and think twice about lowering their standards in making their final decisions. The higher the standard of evidence, the more defensible and honest the outcome.
The revised regulations will reduce the administrative burden on universities and allow them to choose easier methods. Schools have until August 1 to comply. But before succumbing to the temptation of procedural minimalism, schools should carefully consider the significant litigation risks they are exposing themselves to. It also encourages internal and external stakeholders to make a decision to abandon traditional mechanisms for ensuring fairness and integrity in fact-finding and decision-making, rather than a flimsy process that inherently results in predetermined outcomes. We should also focus on how we view ourselves.
Defendants deserve accurate and reliable fact-finding. Victims have the right to fair, just and defensible convictions against those who harmed them. Society needs organizations that recognize the gravity of their mission to seek truth and the incalculable consequences of getting it wrong. The false promises of efficiency in the revised Title IX regulations threaten to leave everyone shortchanged.
T. Marcus Funk is a former federal prosecutor, law professor, and founding co-chairman of Perkins Coie. higher education practice.follow him @tmarkusfunk1. Jean-Jacques Cabou is company-wide co-chairman of Perkins Coie’s. White collar and investigative practiceprofessor of law and member of the American Law Institute.
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