Title IX: Rolling Back the Requirement of Live Hearings and Adversary Cross-Examination in Postsecondary Schools & For Schools, Why Opting Out of Live Hearings Could Mean Opting Into a Lawsuit04/24/2023
By: Anna Lauren Bock, Devin Laudenschlager, and Emily Pollak
Supervising Partner: Kimberly C. Lau
June 23, 2022, marked the 50th anniversary of the Title IX Education Amendments of 1972 (“Title IX”), a federal civil rights law promoting an education free from sex discrimination, including sex-based harassment and sexual violence.1 That same day, the U.S. Department of Education (“DOE”) unveiled its highly anticipated amendments to Title IX (“Proposed Rule”) for public notice and comments.2
This article will discuss the Proposed Rule which would amend the current regulations as promulgated in 2020 under the Trump administration. Specifically, it will address the proposed changes to the live hearing and cross-examination requirements for postsecondary educational institutions when adjudicating complaints of sex-based harassment and sexual violence.
On March 8, 2021, President Biden issued Executive Order 14021, entitled Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity (“Executive Order”)3. The Executive Order called for Secretary of Education, Dr. Miquel Cardona, to review the 2020 rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 34 C.F.R. pt. 106 (2020).4 In June 2021, as part of Secretary Cardona and the DOE’s review of the existing Title IX rule, the Office for Civil Rights (“OCR”) held virtual nationwide public hearings for various stakeholders, “including students, parents, and educators in elementary, secondary, and postsecondary schools, state government representatives, advocates, lawyers, researchers, and others” to express their individualized concerns.5 During the public hearings, the DOE acknowledged one of the overarching concerns was the need for greater clarity and assurance that complaints of sex-based harassment will be resolved promptly and equitably by educational institutions receiving federal financial assistance (“Recipients”)—particularly during the grievance process.6
Under the 2020 regulations, when a formal complaint of sexual harassment is made, postsecondary institutions must conduct live hearings with advisor-conducted cross-examinations as part of its grievance procedures.7 The Proposed Rule would remove this requirement. Sections 106.46(f)-(g) of the Proposed Rule grant discretion to postsecondary institutions to choose between: (i) allowing the decisionmaker8 to cross-examine the parties and witnesses either during individual meetings or at a live hearing; or (ii) mandating live hearings and allowing the parties to have an advisor (e.g. an attorney) cross-examine the opposing party directly.9 Each institution shall select whichever model best enables its decisionmakers to assess the credibility of both the respondent and complainant.10
The Proposed Rule
Under the Proposed Rule, institutions are not required to conduct live hearings with advisor-led cross-examination. Instead, institutions may allow the decisionmaker, either a school administrator or outsourced law firm representative, to cross-examine both complaint and respondent, and to question witnesses themselves.11 Under this model, also known as the “single investigator model,” decisionmakers would have the discretion to ask any questions they deem relevant to challenging credibility and determine the relevance of any questions submitted by the parties.12
In the preamble to the Proposed Rule, the DOE indicated that stakeholders expressed several concerns with the live hearing and advisor-conducted cross examination requirements of the 2020 regulations.13 Some stakeholders, including Victim’s Rights Advocates, argued that the current system is unnecessarily adversarial, retraumatizing, and revictimizes the complainant, which can create a chilling effect on the number of complaints filed.14 Recipients also expressed concerns that, among other things, the prescriptive and burdensome requirements of the live hearing and cross-examination process make it difficult and costly for them to comply with their Title IX obligations and that a single investigator model is more time-efficient and cost-effective.15 By removing the requirement that Recipients provide a forum for live-hearings and adversarial cross-examination, complainants may feel less vulnerable and more inclined to pursue the grievance process.
To understand the potential impact of the Proposed Rule on postsecondary institutions, one must consider the relevant provisions under the current regulatory scheme as well as the rationale provided by its supporters during the 2020 rulemaking process.
Under the current regulations, the decisionmaker is required to allow each party’s advisor to cross-examine the opposing party and all witnesses during the live hearing, including questions which challenge the opposing party’s credibility.16 Cross-examination is conducted orally and in real time, and the decisionmaker must permit the advisor to ask any relevant follow-up questions that arise.17 Still, the decisionmaker may object to questions posed by the advisors if they are deemed irrelevant.18
In support of the 2020 regulations, the DOE emphasized the need for strong procedural protections for not just one, but both parties during the grievance process.19 The DOE then explained that the serious nature of sexual harassment accusations necessitates a predictable and fair grievance process, which can be achieved through live, real-time, adversarial cross-examination between the parties.20 The DOE argued that this process allows a party’s advisor to advocate on their behalf, challenge the credibility and inconsistencies posed by the opposing party, and simultaneously allow a neutral decisionmaker to observe the parties and witnesses as they answer questions—which, in the DOE’s 2020 opinion, serves a better truth-seeking function.21 The DOE added that because live hearings and cross-examination by advisors represents a more serious, formal process, it serves the additional purpose of ensuring that all parties and Recipients are aware of the magnitude of the circumstances.22
If the Proposed Rules are finalized as is, postsecondary institutions should be aware that, despite full compliance with Title IX regulations, they may still be vulnerable to civil liability and/or lawsuits asserting due process violations.
Why Opting Out of Live Hearings Could Mean Opting Into A Lawsuit
Generally, a student attending a federally funded postsecondary institution may enforce their Title IX rights by either (1) filing a complaint with OCR; or (2) filing a private right of action against the Recipient.
When a student files a formal complaint with OCR, the potential relief is limited to the OCR’s enforcement of the Recipient's compliance with Title IX and the issuance of appropriate remedial measures.23 Moreover, Recipients risk losing federal funding if a student’s OCR claim is successful.24 Alternatively, if a student brings a private right of action against a Recipient,25 the school risks civil liability and may be required to pay monetary damages if the student succeeds on his/her claim.
Importantly, even if a Recipient follows the Title IX requirements as set forth in the Proposed Rule, students remain entitled to raise constitutional due process violations against Recipients. This due process right exists only for students who attend public postsecondary institutions and can be exercised when a student believes his/her constitutional rights were violated during a Title IX grievance process. Notably, Circuit Courts are split regarding what constitutes sufficient due process. Illustrating this split, the Section below discusses the two primary approaches Circuit Courts utilize when considering whether adversarial cross-examination is essential to an individual’s due process rights. As such, Recipients should remain mindful of federal due process rights and additional legal requirements specific to each state.
In Doe v. Baum, the Sixth Circuit upheld a categorical rule requiring live, adversarial cross-examination in Title IX disciplinary proceedings,26 stating that cross-examination was “the greatest legal engine ever created for uncovering the truth.”27 The Court reasoned that cross-examination may uncover inconsistencies and make more accurate credibility determinations, which better assists the investigator.28 Thus, “if a university is faced with competing narratives about potential misconduct” school administrators are required to “facilitate some form of cross examination in order to satisfy due process.”29
A Circuit Split
Alternatively, the First Circuit does not require live, adversarial cross-examination.30 In Haidak v. University of Massachusetts Amherst, the court refused to “announc[e] a categorical rule that the [defendant] had to provide for cross-examination by the accused or his representatives in all cases turning on credibility determinations.”31 The Court continued that it had “no reason to believe that [the] questioning of a complaining witness by a neutral party is so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation.”32 At minimum, respondents must have “some kind” of notice and hearing regarding the charges against them.33 However, the notice and hearing requirements are fact-specific. “The more serious the deprivation, [i.e. expulsion or suspension,] the more demanding the process.”34 Haidak exemplifies the First Circuit’s approach which grants universities broad discretion to employ its own procedural mechanisms to satisfy due process based on the circumstances of each case.
Unlike the Sixth and First Circuits, the Second Circuit’s approach is less clear. In the Eastern District of New York case, Doe v. Haas, the Court stated that, in the Second Circuit, “there remain[s] many vexing questions as to what due process requires in school disciplinary hearings. [W]hile the courts have recognized that when credibility is at issue the accused should be provided some form of cross-examination[,]” there are no cases requiring “the accused to personally cross-examine the accuser … .”35 Moreover, the Court expressly denounced the Sixth Circuit’s decision in Baum that an advisor should be able to cross-examine the opposing party where the party himself is unable to personally conduct the cross-examination.36 The Court held that the Baum holding was not controlling but failed to provide a reason for declining to adopt the Sixth Circuit’s approach.
As discussed above, instead of filing a claim in court alleging a violation of due process generally, a student may choose to file a complaint with OCR to enforce his/her Title IX rights. Therefore, a student attending a postsecondary educational institution should understand the Proposed Rule’s impact on their due process rights in a Title IX proceeding. Notable considerations include:
Considerations Moving Forward
- Unlike the current regulations which mandate live, adversarial cross-examination, the Proposed Rule removes this requirement and instead provides institutions with the discretion and flexibility to select its own procedure.38 Notably, the Proposed Rule does not specify whether a postsecondary educational institution must maintain uniformity across all of the Title IX grievance procedures that it adjudicates.39 In other words, the Proposed Rule would allow a single institution to determine whether to conduct a live hearing or not, from one case to the next. As a result, the Proposed Rule can lead to an inconsistent and arbitrary application of the rules both within single institutions and across all postsecondary educational institutions throughout the country.
- Although the Proposed Rules require postsecondary educational institutions to disclose its Title IX grievance procedure policies40, the language of the rule does not preclude institutions from specifying within its policies that it maintains discretion to choose between the two fact-finding models on a case-by-case basis.41 This lack of transparency may make it difficult to predict the method a given institution will apply and whether live, adversarial cross-examination procedures will be available until the student is thrust into the process. With institutional discretion baked into the Proposed Rule, it may also mean that complainants and respondents have little room for appeal of an institution’s decision.
- The Proposed Rule is more favorable to postsecondary institutions and complainants, while providing less protection for respondents. This shift in protection is a noticeable deviation from the current Title IX rule. Under the Proposed Rule, institutions may consider additional factors such as cost and efficiency, when determining whether to adopt an advisor led cross-examination or investigator led cross-examination model. While the Proposed Rule intends to prevent re-victimization for complainants during live hearings, by providing schools an alternative to this approach, it has also chipped away at the procedural due process guarantees for respondents.
- See Press Release, Dep’t of Educ., The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment (June 23, 2022) (on file with author).
- See id.
- Exec. Order No. 14021, 86 Fed. Reg. 13803 (March 8, 2021).
- See id.
- Press Release, Dep’t of Educ., supra note 1.
- See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 34 C.F.R. 106 at 41391 (proposed July 12, 2022).
- This is different from the requirements that an elementary or secondary school recipient follows as the DOE determined when drafting the 2020 amendments that “issues related to age and developmental ability may outweigh the benefit of cross-examination at a live hearing in the elementary and secondary school context … [And,] that because these same issues do not exist at the postsecondary institutions, since most parties and witnesses are adults, grievance procedures at postsecondary institutions must include live cross-examination at a hearing.” Id. at 41503.
- Decisionmakers are among the persons who are “responsible for implementing the recipient’s grievance procedures.” Id. at 41428.
- See id. § 106.46(f)(1), § 106.46(g).
- See id. § 106.46(f)(1).
- See id. at § 106.46(f)(1)(i) (proposed July 12, 2022).
- See id.
- See id. at 41504.
- See id. at 41503; See also id. at 41505 (“As of June 2021 … some postsecondary institutions reported that they experienced a decrease in the number of complaints filed as well as an increase in the number of individuals who report sexual harassment but decline to move forward with the grievance process once they are provided with information about the grievance process. These postsecondary institutions expressed the belief that based on their experiences, the reduction in complaints filed and in complainants willing to move forward with the grievance process is likely due to the live hearing and advisor-conducted cross-examination requirements in the 2020 amendments.” However, the DOE admitted that this feedback was based off of recipients having only a “limited amount of time to assess the impact of the 2020 amendments’ live hearing and cross-examination requirement.”)
- See id.
- See id. at 41501.
- See id.
- See id.
- See id.
- See id. at 41504.
- See id.
- See id. at 41458.
- “OCR evaluates, investigates, and resolves complaints alleging sex discrimination.” U.S. Dep’t of Educ, Title IX and Sex Discrimination, https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html (last visited Aug. 30, 2022).
- “Those schools that violate Title IX could lose federal funding.” Ralph v. Hobart & William Smith Colleges, 271 F. Supp. 3d. 386, 391 (W.D.N.Y. 2017).
- “Most courts have explicitly recognized at least four Title IX theories of liability under which a student may attack [their] university’s disciplinary proceedings on the basis of gender bias against [them]: (1) erroneous outcome; (2) selective enforcement; (3) deliberate indifference; and (4) archaic assumptions.”Courtney Joy McMullan, Flip It and Reverse It: Examining Reverse Gender Discrimination Claims Brought Under Title IX, 76 Wash. & Lee L. Rev. 1825, 1844-1855 (2019).
- Baum, supra, note 26 at note 3 (“Doe asks for an opportunity for a hearing with live cross-examination. Due process requires as much. If the university is worried about the accused confronting the accuser, it could consider other procedures such as a witness screen. But if the university does not want the accused to cross-examine the accuser under any scenario, then it must allow a representative to do so.”).
- Id. at 581.
- See id.
- Haidak v. Univ. of Massachusetts.-Amherst, 933 F.3d 56, 69 (1st Cir. 2019).
- Id. at 72.
- Id.; citing Doe v. Univ. of Cincinnati 872 F.3d 393 400 (6th Cir. 2017).
- Doe v. Haas, 427 F. Supp. 3d 336, 352-353 (E.D.N.Y. 2019).
- See id. at 353.
- See id.
- See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, supra, note 6 at § 106.46(g).
- The applicable rule simply states that “[a] postsecondary institution’s sex-based harassment grievance procedures may, but need not, provide for a live hearing.” See id. The language “may, but need not” is ambiguous in that it does not specify that institutions must adopt a single fact-finding procedure across all Title IX hearings.
- See id. at 41408.
- See generally Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, supra, note 6 at § 106.46(g).