II. Analyzing Past, Present, and Future Title IX Adjudication Processes
The Title IX adjudication process for sexual misconduct in higher education is different than both civil and criminal adjudication processes. However, as state actors, public universities must still comport with due process requirements in Title IX proceedings, further supporting the goal of impartiality in the Title IX sexual misconduct grievance process. The schools adjudicating these claims, the complainant students, and the students accused of sexual misconduct all have compelling interests in protecting due process rights. Schools have an interest in maintaining fairness for the victim and accused student and promoting a successful educational environment. Students who initiate complaints have an interest in justice, safety, and the potential for the educational institution to impose a punishment on the individual the student has accused. Students accused of sexual misconduct, on the other hand, have a compelling interest in protecting their status as a student, their reputation, and the potential of the evidence and outcome from the Title IX proceeding being used in a later criminal proceeding. Even in the university setting where a Title IX violation may lead only to educational consequences, there is a long-standing stigma that may be associated with a guilty finding.
A. The Title IX Sexual Misconduct Adjudication Process Today
While the Title IX regulations require some safeguards in the different roles played by Title IX officers at schools which have received federal grants, the Department gives schools a significant amount of discretion. Importantly, schools can decide who can be the decisionmaker, as long as the decisionmaker is not the Title IX coordinator and, on appeal, not the same decisionmaker who served in the lower stage. The coordinator, however, can also serve as the Title IX investigator. Additionally, the regulations do not require recipient schools to use outside unaffiliated Title IX personnel, and most schools choose to comply with Title IX regulations by using their own employees.
Under the Trump Rule, parties in a Title IX proceeding may have an advisor throughout the entire process, but they must have an advisor during the live hearing. Each party may choose an advisor, such as a parent, professor, or lawyer, but if a party does not have an advisor of choice for the hearing, the institution is required to assign an advisor to the lacking party. The regulations state that the advisor does not have to meet any qualification, skill, or competence bar. Additionally, advisors are not subject to impartiality, conflict of interest, or bias requirements, like other Title IX personnel. Moreover, though institutions may provide training or competency requirements on assigned advisors, institutions are not allowed to place any competency requirements on chosen advisors. There is no remedy for parties who feel their advisor was insufficient in representing them because the Department does not entertain any claims of ineffective assistance of counsel.
The regulations also restrict what institutions may do to regulate the equity between the parties’ chosen or assigned advisors. While some of these requirements serve to protect students and ensure each student has an advisor, others promote considerable inequities between parties and may give one party an unfair advantage in a Title IX proceeding. Specifically, while universities may not charge a party money for an assigned advisor and must stop a hearing if a party does not have an advisor, universities also may not limit who a party selects as an advisor (for example, by requiring a lawyer as opposed to an individual without legal training). They are also prohibited from setting an upper-cost ceiling for advisors, which gives those with more financial resources the ability to hire skilled legal professionals to represent them, while others may not have this same opportunity. During cross-examination, a hearing officer must have the opportunity to ask questions of parties or witnesses and observe cross-examination of the other party. The advisor, regardless of their legal training or Title IX understanding, is charged with performing cross-examination on the opposing party, which may serve to prolong the process and engagement with parties without yielding helpful testimony.
Problems with the cross-examination requirement at a live hearing include a high chance for re-traumatization of a victim, inequities between the representation the parties can afford, and a general lack of impartiality of the different Title IX personnel who adjudicate the claim. Courts have found that school proceedings do not require a live hearing with cross-examination in accordance with the Due Process Clause. Further, courts have determined that the “Constitution does not confer on [an accused student] the right to cross-examine his accuser in a school disciplinary proceeding[]” and “[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings.”
Under the Trump Rule, the Title IX coordinator and investigator may be the same individual. The Title IX coordinator must act once the institution has actual notice of a Title IX claim. This individual is required to contact the complainant and discuss the available supportive measures, consider the complainant’s wishes with respect to these measures, explain the process for filing an official complaint to the complainant, and notify the complainant of available supportive measures regardless of whether an official complaint was filed. The Title IX decisionmaker is tasked with deciding whether the accused individual is responsible of the accused sexual misconduct after a live hearing is conducted. The decisionmaker who makes fact determinations can be a layperson who impartially uses logic and common sense to come to a conclusion but has to explain their rationale.
The Title IX grievance processes at higher education institutions lack the proper impartiality required to provide fair and just treatment to both the victims and the students accused of sexual misconduct. Unfair treatment arises from due process concerns due to the criminal implications of such proceedings and the new trend towards favoring accused students in Title IX proceedings under the Trump Rule. Unfortunately, even under the pre-Trump Rule, Title IX sexual misconduct adjudication structures employed by various schools—the investigative, the disciplinary-hearing, and the hybrid models— did not provide an adequate method for improving the impartiality which would provide a greater level of fairness.
B. Title IX Sexual Misconduct Adjudication Models and Decisionmaking Structure in Higher Education
Before the Trump Rule, schools’ chosen Title IX procedures fit approximately within three models: the investigative model, the disciplinary-hearing model, and a hybrid model. The Trump Rule disposed of the investigative model and moved towards a model that requires, by law, a live hearing component. However, it is useful to examine each of these models that universities once had the freedom to choose between to (1) determine how to improve the impartiality of the Title IX sexual misconduct adjudication process and (2) understand what Title IX regulations may look like once the Biden Rule is in effect.
Some universities employed a two-part disciplinary-hearing model that functions like a trial in a courtroom. In this model, universities employ an investigator or investigative team to conduct an initial screening to determine whether a complaint should be further adjudicated. The respondent party may choose to have the complaint heard in a hearing. Then, the primary fact-finding is done by the parties when they present their cases to a board of university officials, who make a final determination of responsibility in the case.
Some universities used the investigative or single-investigator model to adjudicate Title IX sexual misconduct claims. This investigative model combined the investigation part of the process with the adjudication, effectively making the investigator(s) the fact-finder and initial decisionmaker. In this model, universities appoint an investigator or investigative team to first meet with the complainant and decide whether the complaint merits more fact-finding. The same investigative team, if it determines the claim is viable, proceeds to interview both parties separately and, upon further fact-finding and a written form of cross-examination, determines whether the accused party is responsible. This model attempted to reduce contact between both the parties and the courtroom-like atmosphere, since the courtroom-like atmosphere can lead to conflict and re-traumatization of the victim. However, this model is more likely than the disciplinary-hearing model to raise questions about whether such a model can meet due process standards.
Like the other two models, the disciplinary-hearing model charges an investigative team with conducting initial fact-finding to determine whether the case should proceed on its merits. If a disciplinary hearing is then deemed necessary, the investigator conducts further fact-finding. Once both parties have an opportunity to review the others’ reports, a hearing takes place where the parties present their case to a board or panel of university officials. The board then serves as the decisionmaker and determines whether the accused party is responsible.
Different universities have taken different approaches to the hybrid model. For example, the University of Minnesota hired lawyers to act as investigators and as employees of the University’s Title IX Office, which is housed within the Office for Equity and Diversity. On the other hand, Yale University hired outside investigators to conduct the fact-finding and generate a report of both parties’ claims.
The Trump Rule places a heavy emphasis on a live hearing with a cross-examination function. Before its adoption, universities were once more free to choose between the models to implement one they deemed fit their needs best; however, the Rule effectively pushes universities towards using the disciplinary-hearing model of adjudicating Title IX claims and dispenses with the single-investigator model. In all three models, in practice, almost all of the people charged with investigating and issuing disciplinary decisions are employed by the school at which the proceeding is taking place, and they most likely report to the university’s administrators, which poses a major conflict of interest.
C. Expected Effects of the Proposed Biden Rule
The Biden Rule under Education Secretary Miguel Cardona indicates a near-total reversal of most of President Trump’s changes under Secretary Betsy DeVos. Overall, the Biden Rule makes four big changes that indicate a reversion to Obama-era regulations: (1) the preponderance-of-the-evidence standard of proof, (2) the removal of the cross-examination requirement, (3) the broadening of the definition of sexual harassment, and (4) a return of the option for a school to implement the single-investigator model.
The Biden Rule generally requires schools to return to the Obama-era guidance for the standard of proof in Title IX sexual misconduct proceedings: the preponderance-of-the-evidence standard, where a complainant must prove that more likely than not, discrimination occurred. The Biden Rule also permits a school to require a clear and convincing evidence standard—a much higher standard—if other similar proceedings at that school require that standard; in contrast, the Trump Rule broadly promoted a clear and convincing standard, which was “the same standard of proof as it adopts for complaints against employees, including faculty.” Kimberly J. Robinson, a professor of law at the University of Virginia and education law expert, explained that “[t]he latter standard is so difficult to meet that it can deter those who have experienced sexual harassment and assault from coming forward.” Professor Robinson added that the “preponderance of the evidence standard appropriately enables the decisionmaker to weigh all evidence, including the credibility of witnesses, and determine what is likely to have happened without extrinsic corroborating evidence that is oftentimes lacking”
Another major difference between the Trump Rule and the Biden Rule that education law scholars are paying close attention to is the live hearing and cross-examination requirement. The Biden Rule does not require a live hearing and cross-examination, which opponents of the live cross-examination requirement like Professor Robinson say “give educational institutions flexibility to assess credibility through questioning at individual meetings with the parties or a live hearing.” As a result, universities have the ability to decide on a strategy to assess the credibility of witnesses and the validity of evidence while mitigating the negative impacts that a live hearing might have on both the victim and the accused. Further, universities can simultaneously provide flexibility in tailoring the procedure to the specific parties and allegations. The requirement of a live hearing with a cross-examination is highly resource intensive, less cost effective, and as a result, difficult for universities to comply with while also ensuring that Title IX cases do not become backlogged.
Further, the Trump Rule disposed of the single-investigator model; the Biden Rule brings it back. The single-investigator model “allows the same person who investigates sexual misconduct complaints to determine guilt and innocence.” Proponents say that this is fairer to the complainant and is more resource-friendly way to adjudicate Title IX claims. Critics argue that this marks a return to Title IX adjudications that prevent accused students from access to adequate due process. Further, it shortens the need to prolong investigations and Title IX proceedings longer than necessary and reduces the exposure of the details of the claims to a smaller group of people, which is beneficial to both the complainant and the respondent.
Lastly, while the Trump Rule narrowed the definition of sexual harassment, the Biden Rule broadens it. Under the former, students were required to show that the behavior they were enduring was “so severe, pervasive, and objectively offensive” that it denied access to educational benefits on the basis of sex. The Biden Rule defines an unlawful hostile sexual harassment environment as “unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” Under the latter definition, students are more protected from sexual misconduct and may feel more comfortable reporting claims and initiating Title IX proceedings. Professor Robinson stated, “All students will benefit from a stronger institutional commitment to preventing, ending, and remedying a broader range of sexual harassment so that students can focus on learning in a safer and more welcoming environment.”
The differences between the Trump-Era regulations and the Biden Rule represent a sharp contrast in the cultural attitudes of the two administrations. Professor R. Shep Melnick observed that the Trump Administration followed a narrow understanding articulated by the Supreme Court in the late 1990s that only required schools to “take action against individual students or employees who engage in sexual misconduct so serious that it deprives students of the opportunity to receive an education.” Professor Melnick suggests that the Trump Administration intended to spot and punish the few “bad apples.” On the other hand, the Biden Rule illustrates a return to “what the Obama administration called a ‘new paradigm’ on sexual harassment . . . .” The Biden Rule does not seek to punish a few “bad apples”; it seeks to change the “rape culture” pervasive on college campuses
While the Biden Rule offers a more balanced approach and more reasonable avenues for implementation, it still does not provide enough impartiality in Title IX sexual misconduct proceedings. First, the Title IX adjudication process must be free from conflicts of interest. Second, the Title IX adjudication process must adequately balance respondents’ and complainants’ interests.
D. Balancing Respondents’ and Complainants’ Interests: Due Process for the Accused and Regulating Inequities Between Parties
Critics are justifiably concerned that a return to a single-investigator model may provide for a lack of constitutional due process rights for students accused of sexual misconduct. When the same person who investigates also makes the finding of innocence or guilt, that person is acting as though they are both the lawyer and the jury in a trial court. At the same time, there must exist a path for universities to regulate the inequities that may exist between parties when it comes to resources. For example, some students may be able to hire a lawyer to defend them in a Title IX proceeding, while other students may be represented by professors or parents who lack legal training or experience.
The Trump Rule also restricts what institutions may do to regulate the equity between the parties’ chosen or assigned advisors, some of which enable considerable inequities between parties and may, in practice, give one party an unfair advantage in a Title IX proceeding. Specifically, while universities are not allowed to charge for an assigned advisor and must stop a hearing if a party does not have an advisor, the universities are also not permitted to place a limit on who a party selects as an advisor (a lawyer as opposed to a parent or professor not trained in the law). They also may not set a cost ceiling for advisors, giving those with more financial resources the ability to hire skilled legal professionals to represent them, while others may not be able to. The advisor, regardless of the amount of legal training or understanding of Title IX they have, must perform a live cross-examination on the opposing party. Together, these restrictions on advisors detract from the university’s ability to balance competing interests and are likely to increase inequities between parties.
E. Title IX Adjudication Free from Conflicts of Interest: An Analogue to Executive and Independent Agencies
There is a critical need to address the lack of impartiality in the Title IX sexual misconduct grievance process in higher education institutions. A model in which universities pay investigative teams and decisionmakers to adjudicate cases arising from those universities can lead to biases and undue political pressures to rule in the school’s favor. As such, safeguards must exist to ensure that the Title IX proceedings are as free from conflicts of interest as possible.
To illustrate why such a safeguard is needed, the federal agency structure is a helpful analogue. In the federal government, administrative agencies exist in two forms: executive agencies and independent agencies. Executive agencies operate under the direct control of the President. The leaders of executive agencies, mostly cabinet members, such as the Defense Secretary, serve at the pleasure of the President. For the most part, these cabinet members and executive agencies exert efforts to implement the President’s vision for governing.
On the other hand, independent agencies are structurally different from executive agencies in that they are “collegial” decisionmaking bodies, meaning they make decisions after deliberating and voting. In some independent agencies, decisionmakers are required to be politically diverse to prevent any one party from dominating, and to ensure decisions are free from partisan politics. Instead of serving at the pleasure of the President, as the cabinet members of executive agencies do, commissioners of independent agencies serve for a term of years.
One example of an independent agency that could serve as a model for an enforcement agency with adjudicatory responsibilities is the EEOC. Title VII of the Civil Rights Act created the EEOC and gave it the authority to enforce Title VII. Title VII forbids employment discrimination on the basis of an employee’s “race, color, religion, sex, or national origin . . . .” The EEOC’s mission is to “‘[p]revent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace . . . .’” Title VII gives the EEOC the authority to investigate employees’ discrimination allegations against employers who are bound by Title VII. Once the EEOC concludes its 180-day investigation, it gives the complainant two options. First, the complainant may file a lawsuit against the employer; if the employee decides to take this route, the EEOC will close the complaint and cease action regarding the matter.
Under the second option, the complainant may request a hearing pursuant to 29 C.F.R. § 1614.109, which is usually an informal proceeding, serving as the EEOC’s adjudicatory function. In this hearing, an administrative judge (AJ) will be assigned to oversee the complainant’s case. As an employee of the EEOC and an attorney familiar with relevant laws, the AJ presides over the hearing, acting as jury and judge. During the proceeding, “[p]arties generally are permitted to make opening and closing statements, offer into evidence witness testimony and documents, examine and cross-examine witnesses and raise objections and obtain rulings on objections from the AJ.”
While parties may represent themselves pro se, they are expected to be familiar with the agency’s relevant regulations and laws. If the EEOC concludes its investigation and finds that the employer unlawfully discriminated against the employee, the EEOC has the authority and may decide to file a lawsuit to “protect the rights of individuals and the interests of the public and litigate a small percentage of these cases.”
The EEOC is a particularly relevant independent federal agency to analyze in this context because, although Title IX was modeled after Title VI, courts have interpreted Title IX in accordance with Title VII. The Supreme Court has asserted that the statutes are different and that Title VI’s standards are not to be blindly followed in Title IX cases. However, even the Supreme Court has invoked Title VII principles when interpreting Title IX. Further, several federal courts have acknowledged that, because Title IX does not provide an analytical framework for evaluating claims of gender discrimination, Title VII provides “the most appropriate analogue when defining Title IX’s substantive standards . . . .” Just as independent agencies have a degree of removal from the President’s influence and, thus, electoral politics, Title IX officers (especially Title IX investigators and decisionmakers) must have an added degree of separation from the politics and financial pressures of the universities they serve.
III. Recommendations
The Department should promulgate a rule requiring schools to add an extra degree of separation between those adjudicating Title IX claims and those involved in university spending and hiring. Alternatively, Congress should enact legislation similar to Title VII to create an independent agency under the Department of Education, such as the EEOC under the Department of Labor, that may impartially adjudicate Title IX claims.
A. The Hybrid Model Plus: Implementing the Hybrid Model with an Additional Layer of Independence
As explained in the above sections, the investigative model and the disciplinary-hearing model have advantages and disadvantages. The investigative model is inadequate because, although the intentional separation of the victim and perpetrator may increase comfort and fairness for a complainant, the combination of the investigative and decisionmaking processes may detract from the accused student’s due process rights. The Trump Rule is an iteration of the disciplinary-hearing model of adjudicating Title IX sexual misconduct claims. While the general requirement that the investigative part of a Title IX proceeding and the decisionmaking part remain separate improves the impartiality over a single-investigator model, the Trump Rule exacerbated certain problems in the process. The inclusion of a cross-examination requirement at a live hearing is likely to re-traumatize victims, the lack of a cost ceiling for advisors perpetuates inequities between the amount of representation the parties can afford, and the structure of Title IX personnel still generally lacks impartiality.
On the other hand, a hybrid model incorporates elements of both the disciplinary-hearing and investigative models. This model implements the necessary two-part process that ensures that the investigative team is not also the decisionmaker and allows for there to be a hearing if necessary. However, implementing a hybrid model alone cannot solve the problem of impartiality that plagues the Title IX sexual misconduct grievance process. Such a model must also include an additional layer of separation between Title IX officers from the employer university to reduce potential funding or reciprocity bias and ensure impartiality.
In the interest of preserving university discretion and reducing the financial and bureaucratic burdens that may otherwise be put on the Department, universities should employ various mechanisms to comply. For example, housing the Title IX Office, investigators, and decisionmakers within an office that would not report directly to higher-level university administrators or be charged with holding the university officials accountable for abiding by the law; this could be a legal office separate from the university’s general counsel. Further, universities may choose to hire investigators who are externally employed entirely. A university’s Title IX Office may also consider hiring lawyers as investigators and decisionmakers bound by an external ethics code to ensure their commitment to the law and that they mitigate their biases in their determinations. The imposition of an ethics code alone that includes a provision regarding impartial fact-finding and making determinations on universities’ Title IX officers, especially investigators and decisionmakers, could help increase impartiality.
B. The Ideal Solution: An Analogue to the EEOC
The Department may decide that such a hybrid model with an added layer of independence enacted through notice-and-comment rulemaking would not be adequately impartial for adjudicating sexual misconduct claims or would be too difficult to implement. In the alternative, Congress should enact a statute that would create an independent agency (Title IX Agency) within the Department of Education. This new agency would include an impartial tribunal with a neutral investigative body that adjudicates Title IX sexual misconduct claims, modeled after the EEOC. The Title IX Agency, as the EEOC is housed in the Department of Labor, would be housed in the Department of Education. The new independent agency would be critically helpful to ensure due process concerns are addressed as well as the impartial treatment of both victims and accused students, justifying the considerable resources required to create such an agency.
The Department of Education would employ and train the investigators and decisionmakers within the Title IX Agency—not the university—to ensure impartiality by having a decisionmaker that is substantially separated from the individuals and institution involved in the Title IX proceeding. The investigators in the Title IX Agency would be charged with efficiently, fairly, and accurately assessing the allegations in the complainant’s sexual misconduct claim, similar to the responsibilities of the EEOC investigators. The responsibilities of these investigators would include interviewing the relevant entities, gathering evidence, and potentially making a determination of guilt.
While investigators may make findings of whether Title IX has been violated and sexual misconduct has occurred, after the conclusion of the investigation, the complainant will have the opportunity to request a hearing with an AJ. The decision of this Title IX Agency would be binding and an adverse ruling for a party could include consequences such as expulsion for a student, a financial sanction on a university that is deemed to have not abided by Title IX requirements, or a lawsuit filed by the Department of Education. However, there would be an opportunity to appeal to an AJ of the Department’s Office of Hearings and Appeals, which “provides an independent forum for the fair, impartial, equitable, and timely resolution of certain disputes involving the [Department].”
While the EEOC model may be used as a blueprint for a Title IX Agency, this Section recommends some differences from the EEOC. Because Title IX proceedings are steeped in legal jargon and the stakes are high for both the complainant and the accused, though it may prove costly, both parties should be required to be represented by an attorney. The Title IX Agency’s impartial tribunal and AJs, as courts do for indigent defenders in criminal proceedings, would appoint a legally trained individual to be a party’s advisor if they cannot afford one. Whether the solution to the lack of impartiality in the Title IX adjudication process is statutorily creating an EEOC-type adjudication tribunal or implementing a hybrid adjudication model with an ethics code, Title IX adjudications in higher education will not be sufficiently fair until the process is free from biases and injustices.
Conclusion
In the face of pervasive sexual misconduct on college campuses, the Title IX sexual misconduct adjudication process is desperately needed in higher education. However, Title IX adjudications are extremely controversial. While some argue that the culture of sexual assault discourages reporting and fails to protect victims of sexual misconduct, others argue that Title IX proceedings neglect accused students’ due process rights. With so many conflicting interests, it is increasingly imperative to improve the impartiality of such proceedings to provide legitimacy and fairness to the Title IX grievance process. The Department must issue a rule that requires universities to employ a hybrid-plus model in which the investigative body and decisionmakers are separate entities far removed from the university’s own bureaucratic, political, and financial structure.
In the alternative, Congress should enact legislation that will create an independent agency, analogous to the Department of Labor’s EEOC, that includes neutral investigators and an impartial tribunal to conduct the evidence-collecting, fact-finding, and decisionmaking processes for Title IX sexual misconduct proceedings. Such an agency, though costly and resource-intensive, would remove the burden from schools to adjudicate these claims; moreover, this agency would reduce the lack of impartiality that results when schools investigate Title IX violations. Rampant sexual misconduct on college campuses calls for an effective and fair Title IX sexual misconduct adjudication process, which must be free from biases.
