Title IX / College Discipline Practice - Warshaw Burstein LLP | Comment on the Department of Education’s Proposed Changes to Title IX
This links to the home page
Press & Media

Comment on the Department of Education’s Proposed Changes to Title IX

Comment Submitted by: Kimberly C. Lau, Esq., 
James E. Figliozzi, Esq. and Branden Lynn, Esq.

Collectively, we have nearly 20 years of experience handling education law matters, involving Title IX, First Amendment, Due Process and Civil Rights violations at hundreds of schools across the country at the collegiate and K-12 level. We have assisted student complainants, student respondents and faculty in the school systems and in the courtroom. With this unique, broad perspective, we have reviewed the Department of Education Office of Civil Rights proposed changes to Title IX, 34 CFR part 106. (“Proposed Changes”). We have no comment regarding the new categories protected under Title IX, namely, gender identity and pregnancy. Our comment is focused on the proposed changes to the Title IX grievance process. Instead of bringing clarity and certainty to students regarding the Title IX grievance process, the Proposed Changes grant schools new, unfettered discretion to decide for themselves how they will handle their formal and informal Title IX proceedings and whether a live hearing will be allowed or not. Moreover, the Proposed Changes represent a setback for due process rights to those being accused of sexual misconduct. 

Removal of Live Hearing Requirement Severely Impedes Due Process Rights of Accused Students        

The Proposed Changes allow schools to refuse live hearings and lower their evidentiary standards without maintaining a uniform standard across Title IX and non-Title IX proceedings or student vs. faculty Title IX proceedings.  The Proposed Changes also grant schools the ability to appoint one individual, including the Title IX coordinator, as the sole investigator and decisionmaker in formal Title IX proceedings under a “single investigator model.”  Under the single investigator model, this individual would assume the roles of judge, jury, and executioner.    

Abolishing the requirement of live hearings diminishes a respondent’s due process rights and represents a significant setback for Title IX.  Moreover, several federal court decisions across the country have admonished or outright banned the use of a single investigator model.  See Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018); Doe v. Brandeis University, 177 F.Supp.3d 561, 606 (D.Mass. 2016); Whitford v. Boglino, 63 F.3d 527, 534 (1995).  The notion that a single individual, acting in the overlapping and conflicting capacities of prosecutor and judge, is capable of effectively implementing an accused student's right of cross–examination by posing prepared questions to witnesses during the investigation ignores the fundamental nature of cross–examination: adversarial questioning at an in–person hearing at which a neutral fact finder can observe and assess the witness' credibility. The right to cross-examination goes hand in hand with live hearings. Without a live hearing, cross-examination as a truth-seeking tool is not nearly as effective since self-serving testimony may go unchallenged and investigators may not ask necessary follow-up questions that only the parties would be attuned to. We believe that the Department should remove all provisions that permit post-secondary schools to utilize the single investigator model, and maintain the requirement that all post-secondary schools hold a live hearing to resolve Title IX complaints.  

Evidence Review Will Be Hampered by Removal of Live Hearing Requirement

Additionally, because a live hearing is no longer mandated, the procedural requirements for reviewing and responding to evidence have also been removed by the Proposed Changes.  Access to the evidence collected during the investigation, and the opportunity to respond to that evidence after reviewing it was a key feature of the 2020 Regulations.  Providing both parties access to evidence prior to a hearing created a fair and transparent process that allowed parties to effectively participate in the proceedings.  It also allowed either party to submit additional evidence or identify witnesses who could fill in any gaps in the record before a final decision was made.  Particularly for those facing potentially life-altering consequences, providing this regimented evidence review was an important due process protection.

The lack of access to evidence is particularly prevalent when it comes to students accused of sex discrimination.  This appears to be a broader term than sex-based harassment and presumably covers lesser offenses.  However, the line between sex discrimination and sex-based harassment is not clearly defined, and there is nothing in the Proposed Changes that limit the types of sanctions a school can implement for sex discrimination.  This means students facing expulsion and staff facing termination may have fewer rights depending on which policy the school decides to apply.  Put simply, the Department should reinstate the procedural requirements for reviewing and responding to evidence.  Failure to do so would constitute a grave violation of the due process right of accused students and adversely impact complainants who bring valid claims of misconduct by undermining the validity of any findings of responsibility.  

Sex Discrimination and Sex-Based Harassment Should be Governed by a Single Standard 

The burden for a school to provide written notice and access to the evidence is minimal.  The Proposed Changes should be revised to provide the same due process protections to all parties in the grievance process whether they are charged with sex-based harassment or sex discrimination.  The different standards for sex-based harassment and sex discrimination are particularly disappointing because it mirrors an obvious failing of the 2020 Regulations.  Under the 2020 Regulations, conduct that occurred off-campus often fell outside of Title IX, and schools were obligated to dismiss any Title IX complaint that fell outside of Title IX’s jurisdiction.  However, just because a school dismissed the Title IX complaint did not mean schools ignored the report.  Rather, schools adjudicated off-campus sexual misconduct complaints under separate policies that afforded far fewer procedural safeguards than their Title IX counterpart.  

Students should not be left guessing which policy applies to their case.  A uniform Title IX grievance process that applies to all claims of sex-based harassment and sex discrimination is better than the dual system of uncertainty created by the Proposed Changes.

The Expanded Jurisdiction for the Title IX Grievance Procedures is Better Suited to Remedy Sex Discrimination than the Current Regulations

The 2020 Regulations limited who could file a complaint to individuals who were participating in or attempting to participate in an education program or activity at the time they filed their complaint, which had the effect of denying redress to individuals who were temporarily visiting campus when they were harassed, individuals who graduated shortly after they were subjected to sexual harassment, or individuals who found the harassment to be so severe that they left the institution and had no intention of ever returning.  

We agree with the Proposed Changes in identifying the relevant timeframe for a school’s jurisdiction over Title IX complaints as the date when a complainant was attempting to participate in a recipient’s education program or activity at the time the misconduct occurred.  The Department’s interpretation is better suited to achieving Title IX’s purpose of ensuring that no person is denied equal access to an education program or activity on the basis of sex.  The proposed rule’s expanded application will fill the gaps left by the 2020 Regulations, serve as a stronger deterrent, and hold schools accountable if they fail to address these forms of sexual harassment.

The Proposed Penalties for Failure to Submit to Cross-Examination Should Cover the Parties and Witnesses 

Under the text of the 2020 Regulations, if a party or witness refused to submit to cross-examination, their statements could not be considered by the adjudicator.  This was an attempt to create a simple bright-line rule that provided a right to confront witnesses.  The rule was heavily criticized because it prohibited decisionmakers from considering any statements made by an individual who did not submit to cross-examination.  Critics were particularly concerned about the fact that incriminating statements and texts made by the respondent could not be considered by the adjudicator if the respondent did not submit to cross-examination.  Ultimately, this aspect of the 2020 Regulations was struck down by the courts, so it is not being enforced. This means that, in practice, if a witness does not submit to cross-examination, the adjudicator may rely on their statements or evidence. 

The Proposed Changes appear to emulate the statement against interest hearsay exception found in courts.  Essentially, if a party makes a statement that supports their own position, but then refuses to submit to questioning, those statements cannot be relied upon by the decisionmaker. However, if a respondent makes a self-incriminating statement, or the complainant makes an exculpatory statement, those statements do not support their positions and can be considered by the decisionmaker. This appears to be a well-intentioned amendment, but the provision only applies to the parties, not witnesses. The preamble explains that the Department is concerned about manipulation by the parties and gives the example of a complainant leaving a voicemail and sending an email to a friend detailing the allegations and then refusing to submit to questioning. 

It seems the Department is more focused on party manipulation than the right to confront a witness, so simply using texts and evidence from witnesses who are not present is not the Department’s concern. However, there is still the possibility that a witness who is a close friend of one of the parties engages in some sort of manipulation.  For example, one of the parties might have a friend submit a statement that supports their timeline but fail to offer that witness for questioning during an interview or at the hearing.  In another example, a witness might say the complainant was drinking heavily but further questioning would have revealed that the complainant only had 1 or 2 drinks and displayed no outward signs of intoxication.  We believe §106.46(f)(4) should apply to all parties and witnesses involved in the process because of the potential for manipulation of the process by both parties and witnesses.

The Proposed Changes maintain the provision that the decisionmaker cannot draw an inference about whether sex-based harassment occurred based solely on a party’s or witness’s refusal to respond to questions related to credibility, including a refusal to answer such questions during a live hearing.  We agree. Similarly, the Proposed Changes aim to prevent decision-makers from relying on statements by a party that support their own position if they refuse to answer questions regarding their credibility.  We agree with this as well 

The Proposed Changes include many positive provisions, such as the expansion of Title IX’s jurisdiction, the retention of the informal resolution process, and the restriction on considering self-serving testimony from parties that do not submit to questions related to their credibility.  However, there are many changes that erode due process protections for respondents that we hope are reversed, such as the ability to use a single investigator model, the lack of live hearings with cross-examination, and reduced access to relevant evidence.  We thank the Department for its consideration of this comment and hope that the final rule is amended to resolve the issues we have raised.