With Title IX regs, beware weakening due process (opinion)

May 8, 2024
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The White House approved and released the Department of Education’s sweeping changes to Title IX’s implementing regulations last month, changing the rules for how colleges conduct investigations into allegations of sexual harassment and assault. Colleges now have until August 1 to comply. Though the 1,561 pages making up the notice of final rulemaking have generated controversy on many fronts, there are three significant changes warranting particular attention.

Specifically, the regulations now give institutions the option of:

  1. Adopting the Single-Investigator Model. The campus Title IX coordinator/investigator (the de facto campus prosecutor) may now in the same matter serve as the ultimate fact finder and decision-maker (the de facto campus judge and jury).
  2. Dispensing With Live Hearings, Cross-Examination, and Expert Testimony. The accused no longer has a right to a trial-like, live hearing with cross-examination, and the parties have no right to introduce expert witness testimony.
  3. Lowering the Standard of Proof. The revised regulations create a default presumption that adjudications of responsibility will now be based on a lower standard of proof, namely, preponderance of the evidence (“more likely than not”—or “50 percent plus a feather”), rather than the more demanding standard of clear and convincing evidence (“highly probable”). The 2020 regulations allowed colleges to choose between the two standards, while the new regulations create the default expectation that the lower standard be used unless the higher standard is used in all comparable proceedings.

A Short Title IX Primer

Title IX of the Education Amendments of 1972 is a landmark civil rights law prohibiting discrimination based on sex in all education programs and activities receiving federal dollars through student loans, grants and otherwise. Covered institutions include almost all colleges and universities, which must respond promptly and effectively to claims of sex discrimination lest the federal funding on which they heavily depend be shut off. Although colleges are, of course, free in their codes of conduct to adopt more vigorous processes than those permitted under the new regulations, Title IX sets the procedural floor.

Most of the just-released revisions are morally and legally understandable and justifiable. In a few specific areas, however, they threaten to tip the balance too far in favor of administrators and against the accused, to whom the regulations accord a presumption of innocence (or “non-responsibility”). In so doing, they raise genuine questions not only over procedural fairness and the factual accuracy of campus “guilt” determinations, but also over the legitimacy of the potentially lifelong negative impacts that frequently ensue.

What Is at Stake?

As anyone who has worked in the Title IX arena knows, college disciplinary proceedings (“grievance procedures,” in Title IX parlance) involving allegations of sex discrimination are weighty matters. Students or staff found to have violated an institution’s code of conduct (“respondents”) can be expelled, have their diplomas revoked, and otherwise be exposed to potentially life-altering impacts. Being dismissed from a college and getting prosecuted for a crime are, of course, not the same. Yet both can occur based on the same incident and carry similar collateral consequences.

Reasons to Be Skeptical of the Single-Investigator Model

In allowing institutions to use a single-investigator model once again, the Education Department contends that “requiring separate staff members to handle investigation and adjudication is burdensome for some recipients.” The burden is undoubtedly real. But considering how vital a neutral and fair final decision-maker is to the fairness of the process, the accuracy of the fact-finding, and the integrity and robustness of the final decision, any additional administrative inconvenience and cost are more than justified (and are likely to save money and headaches down the road).

More to the point, adopting the single-investigator model will inevitably invite serious substantive constitutional challenges, in particular for state-run colleges. Consider, for example, the U.S. Court of Appeals for the Sixth Circuit’s 2018 ruling in Doe v. Baum, et al. The court ruled that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent [1] an opportunity to cross-examine the accuser and adverse witnesses [2] in the presence of a neutral fact-finder.”

The Education Department, perhaps sensing the weakness of its position based on administrative ease, notes that colleges can of course voluntarily elect to use independent fact finders. Colleges concerned with the accuracy and fairness of these important processes and not wishing to become magnets for litigation should be wary of adopting the single-investigator model.

Reasons to Be Skeptical of Scrapping Live Hearings

The Education Department contends that requiring cross-examination may re-traumatize complainants, dissuade reporting of misconduct, and inject an unnecessary adversarial dynamic into the system. These concerns are undoubtedly serious and genuinely held.

However, the values of fairness and rigor will, in the longer term, significantly outweigh the perceived short-term gains promised by eliminating the right to a live hearing. As the Baum decision highlighted, the “opportunity to cross-examine the accuser and adverse witnesses” is a central component of a fair process during which competing narratives must be resolved. Colleges that opt to make this historically significant right a thing of the past will almost certainly face significant legal challenges alleging procedural unfairness and unfair outcomes.

Turning to the right to present expert testimony, although the revised regulations, as with the single-investigator model and the right to a live hearing, give colleges the discretion to allow the parties to present expert witnesses, they are no longer required to do so.

According to the Education Department, “the use of expert witnesses may introduce delays without adding a meaningful benefit to the recipient’s investigation and resolution of the case.” Decision-makers will have to render many challenging judgments; ruling on the relevance of potentially important and illuminating expert testimony will, from a big-picture perspective, be a relatively light lift.

Reasons to Be Skeptical About Lowering the Standard of Proof

Many colleges and universities will be tempted to accept the Education Department’s default option to rely on the preponderance of the evidence standard (“more likely than not”—or “50 percent plus a feather”), as opposed to the clear and convincing evidence standard (“highly probable”). These institutions should remain mindful, however, that using a higher standard of proof will help ensure that their final decisions are, and appropriately will be viewed as, more robust and defensible. The accused, their accusers and the system as a whole should welcome a standard of proof that lends extra integrity to the final factual finding.

Litigation on the Horizon

Though the outcome of any litigation challenging the revised regulations on constitutional grounds is likely far in the future, and most of the anticipated litigation will be filed by students who have yet to be disciplined, observers should pay particular attention to State of Alabama v. Cardona, filed April 29 in the U.S. District Court for the Northern District of Alabama. In that case, a group of plaintiffs, including the states of Alabama, Florida, Georgia and South Carolina, argue that the revised regulations violate the Administrative Procedure Act (APA). According to plaintiffs:

The elimination of a parties’ right to a live hearing with cross-examination, even when credibility is a key issue, is arbitrary and capricious. The challenged rule states that college students accused of misconduct—charges that could ruin their academic and professional careers if they are found guilty—no longer have a right to be accompanied by counsel at all proceedings … The Department has not reasonably considered these concerns …

The complaint goes on to argue that the revised regulations fail to “adequately consider the significant due-process concerns of a single-investigator model, let alone how its interests militate the grave dangers of allowing a single person [to] investigate, prosecute, and convict.” More broadly, the plaintiffs argue that “[t]he rule’s changes separately and collectively raise grave concerns, opening recipients up to lawsuits raising due-process claims.”

The APA requires courts to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” That said, reviewing courts are not permitted to substitute their own judgment for that of the agency.

Although the policy arguments raised here overlap with many of those that plaintiffs raise in the Cardona case, the Education Department, with its over 1,500-page notice of final rule-making, has gone out of its way to inoculate its decision-making against arbitrary and capricious challenges. Though the revised regulations’ policy deficiencies in the area of disciplinary proceedings are many, overcoming the APA’s intentionally high bar will be a challenge.

Administrative Options and the Future of the Revised Regulations

Experience teaches that swapping due process and impartiality in decision-making for administrative efficiency, wherever this occurs, more often than not is a bad trade-off for all parties involved. This is especially true where serious consequences, like those present in Title IX grievance procedures, flow from the decisions reached. The revised regulations allow colleges and universities to take the administratively easy way out. Yet the noteworthy changes discussed here stand out because they generate serious litigation risk and avoidably put the institution’s commitment to the truth-seeking process in question.

College disciplinary proceedings resulting in potentially severe sanctions should never be, or be perceived as, a less than reliable rubber stamp. The stakes are far too high for both the accused (who deserve reliable fact-finding) and the victims (who deserve robust, defensible determinations of the factual guilt of their victimizers). Even campus administrators who champion the new regulations should think carefully about the long-term potential for unfair results, ramped-up litigation and stakeholder skepticism before succumbing to the siren song of short-term administrative efficiency.

T. Markus Funk is a former federal prosecutor, has taught law at institutions including University of Oxford (where he received his Ph.D.) and the University of Chicago, and is a recipient of the American Bar Association’s Frank Carrington Crime Victim Attorney Award. He also is the founding co-chair of Perkins Coie’s Higher Education Practice.

Jean-Jacques Cabou is the firmwide co-chair of Perkins Coie’s White Collar and Investigations Practice, has taught law at the University of Chicago Law School and Arizona State University’s Sandra Day O’Connor College of Law, and is a member of the American Law Institute.



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