Colleges and universities should be wary of accepting the invitation to trade due process — a cornerstone of our legal system — for administrative efficiency.
Last month, the Biden administration finally released the Department of Education’s long-anticipated rewrite of Title IX’s implementing regulations. Weighing in at just over 1,500 pages, the notice of final rulemaking and the published draft rules leading up to it have generated controversy at every step.
Most of the debate has centered around the revised regulations’ definition of sexual assault and protections for transgender people. But largely flying under the radar is the regulations’ effort to entice campus administrators to take the easy path toward ejecting or disciplining students and staff accused of sexual misconduct.
Colleges and universities should be particularly wary of accepting the invitation to trade due process — a cornerstone of our legal system — and the fairness and robust fact-finding that due process ensures, for administrative efficiency. History teaches us that this trade-off is usually a bad deal for all involved.
Title IX of the Education Amendments of 1972 plays a crucial role in our education system, prohibiting sex-based discrimination in all federally funded education programs and activities. Institutions that accept federal funds — which includes nearly all American colleges and universities — are obligated to promptly and effectively address claims of sex discrimination or risk losing their federal funding. While these institutions have the option to implement more rigorous due process standards, the revised Title IX regulations now allow institutions to provide only the most minimal procedural protections to students accused of sexual misconduct.
College disciplinary proceedings, often referred to as “grievance procedures” under Title IX, are far from trivial administrative matters. They carry significant weight, with students or staff found guilty of violating an institution’s code of conduct facing potential expulsion, diploma revocation and other life-altering consequences. This underscores the gravity of these proceedings and the need for careful consideration.
Three particular changes stand out as most threatening to unbiased fact-finding and fair decision-making: (1) Adopting the single investigator mode, in which a single official can be both investigator and final decisionmaker; (2) eliminating live, adversarial hearings; and (3) lowering the default standard of proof.
Of most significant concern to procedural fairness and accuracy in fact-finding is that the campus Title IX coordinator can now serve as the investigator, campus prosecutor and ultimate fact-finder and decision-maker in the same matter. This is somewhat deceptively called the “single-investigator model.”
The DOE contends that “requiring separate staff members to handle investigation and adjudication is burdensome.” Maybe. But any such burden pales in comparison to the risk that such a model presents to accused students. Getting it right and ensuring that final decisions are fully informed and correct should matter more. Among other things, this will reduce lawsuits and uncertainty in outcomes in the long run.
Relatedly, campus administrators can now choose to eliminate the accused’s right to a trial-like live hearing with cross-examination and the right to introduce expert testimony. Aside from producing uncertain outcomes untested by either an adversarial process or a neutral factfinder, the single-investigator model paired with the end of meaningful hearings as a matter of right will be a magnet for constitutional challenges, particularly for state-run schools.
In Doe v. Baum, et al., for example, the Sixth Circuit 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 DOE is undoubtedly correct that permitting cross-examination could threaten to retraumatize complainants, provide an unfair advantage to those able to hire attorneys or even scare individuals away from reporting misconduct. But these concerns only reflect one side of the balance. The adversarial process also carries with it very distinct, well-established benefits.
In the words of eminent 20th-century legal scholar John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” After all, as the Baum decision highlighted, resolving dueling narratives through reliance on cross-examination is fundamental to our justice system. The DOE points out that schools retain the option of voluntarily electing to use independent fact finders — but due process should not be optional.
Lastly, under the DOE’s revised regulations, there is now also a presumption that adjudications of responsibility will be based on a lower standard of proof, namely, “preponderance of the evidence” (sometimes called “50 percent plus a feather”), rather than the more demanding “clear and convincing” (i.e. highly probable) standard.
Once again, we urge administrators to think twice about reducing the standard on which evidence is weighed and final decisions are rendered. The higher the standard of proof, the more defensible and integrity-filled the outcome.
The revised regulations allow colleges and universities to lighten their administrative load and opt for the easier way out. Schools have until August 1 to comply. But before succumbing to the lure of procedural minimalism, schools should carefully consider the significant litigation risk to which they expose themselves. They should also focus on how internal and external stakeholders will view their decision to abandon the traditional mechanism for ensuring fairness and integrity in fact-finding and decision-making instead of a flimsy process with essentially predetermined results.
The accused deserve accurate and trustworthy fact-finding. Those victimized deserve fair, just and defensible guilt determinations for those who have harmed them. Society deserves institutions that acknowledge the gravity of their truth-seeking mission and recognize the immense consequences of getting it wrong. The revised Title IX regulations’ false promise of efficiency threatens to ensure that all are left wanting.
T. Markus Funk is a former federal prosecutor and law professor, is the founding co-chair of Perkins Coie’s Higher Education Practice. Follow him @tmarkusfunk1. Jean-Jacques Cabou is the firmwide co-chair of Perkins Coie’s White Collar and Investigations Practice, a law professor and a member of the American Law Institute.
