After more than a year of public comment, meetings and much discussion, the U.S. Department of Education has issued final rules regarding Title IX investigations and hearings. Reaction has ranged from applause to disappointment, as well as commitments to immediately file lawsuits.
Whether you agree with the new rules or not — and they are far from perfect — they represent progress in creating a new standard for conducting these critical proceedings. They also strive to eliminate a perpetual swinging of the legal pendulum in favor of one side over the other. And importantly, the ensuing discussion has led to a general recognition that the structure of a criminal trial is inappropriate in campus-based hearings.
The new rules focus on ensuring that both accuser and accused receive equal access to information, advisers and opportunities to challenge the opposing party. Beginning in August 2020, schools must provide advisers to both parties, allow parties to engage in direct cross-examination and ensure that each party can review and respond to any evidence gathered over the course of fact-finding.
In large measure, these new rules have been a response to criticism that the Obama-era guidance abandoned fairness in favor of the accuser. While this fails to acknowledge the many positives from the Obama-era guidance, the criticism has some merit, as evidenced by the sharp increase in successful lawsuits by accused individuals against educational institutions.
Many of these cases involved lapses in due process, such as failure to receive adequate summaries of allegations, not allowing parties to propose witnesses and refusing requests to ask specific questions of the complaining party.
The Obama rules mandated “a balanced and fair process” for both parties, but faulty application of the guidance undermined fairness and transparency. In one case, for example, the school conducted a hearing in which the accuser did not appear.
The accused could not pose questions of her, even through a neutral adjudicator, nor could the hearing body assess the accuser’s credibility. Still, the accused party was found responsible for engaging in sexual misconduct and was suspended from campus.
The same potential for unfairness exists as we apply the new rules. Will the pendulum now swing back to create an unfair and unjustified advantage for the accused? Because the new regulations require cross-examination of the parties, there is the greater opportunity, for example, to badger students and intimidate them from making complaints.
Part of creating a more equitable system means rejecting that due process can only be achieved through court-like proceedings and adversarial questioning. The goal of providing accused parties with a fair opportunity to address the allegations against them is important. But direct questioning and a courtroom-like atmosphere is inappropriate in a campus setting. More importantly, it can have a chilling effect on the fact-finding process and is unnecessary to achieve fairness.
In cross-examining students, colleges should make it a priority to prevent repetitive, harassing and irrelevant questions. While questions are an important fact-finding tool, administrative adjudicators and advisers should pursue proper training for speaking to persons who may be affected by trauma — including the accuser, the accused and potentially witnesses.
The concept of “trauma-informed” approaches has generated controversy. The label has been cited as proof of bias in favor of accusers. Advocates for those accused of sexual harassment often have found support in the media for assertions that trauma-informed approaches are used to excuse inconsistencies made by complaining parties.
But robust neurobiological research shows otherwise. Evidence demonstrating how trauma affects attention, cognition, behavior and memory only helps to improve investigations and interviews with all parties.
A sound trauma-informed approach leads to better questions; it is not a means to draw conclusions. There should be constant improvements in training and materials to avoid confusion over how trauma and stress are best used in Title IX investigations.
The goals of the new regulations are fairness and equity, which all institutions should strive to achieve, regardless of changing political tides. Instead of fixating on grievances against the new regulations, it is time to direct energy toward improving their application. The objectives should be to keep campuses safe, provide a fair hearing to all sides and ensure that students are heard.
Liz Paris is a partner and hearing officer director in the law firm of Van Dermyden Maddux Law Corporation, a workplace and Title IX investigations firm based in Sacramento, Calif. Paris also serves as faculty for T9 Mastered, a training organization for Title IX professionals.
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