Do certain Title IX procedures abridge the due process rights of the accused for the sake of Title IX compliance? The University of Pennsylvania Law School has become the second law school in recent months to provoke a public response from law professors arguing the University’s new procedures for investigating and adjudicating complaints of sexual assault disregard the due process rights of the accused. In October, a group of Harvard Law School Professors published an open letter pointing out overreach by Harvard University in adopting new procedures for investigations and adjudications which, they argued, “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” Harvard Law School has since drafted its own procedures for investigating and adjudicating Title IX complaints.

Both open letters cited similar concerns regarding the rights of the accused during the investigative process. In particular, both sets of professors argued that their respective universities’ procedures for investigating complaints prevent effective cross-examination of the complainant or other witnesses. They also expressed concern with vesting the power to investigate, make findings of fact, and reach an ultimate decision on responsibility with the same “investigative team” (comprised of a Title IX investigator and another individual from the university), arguing that a more independent body should be used.

While Harvard’s policy provides for a finding of responsibility by the Investigative Unit without a hearing, UPenn’s procedures allow a hearing panel to review the findings of the investigators. In their letter, however, the UPenn professors argued the hearing process lacked fundamental fairness. They highlighted four concerns with the new policy:

  1. the inability of the accused student’s attorney or representative to cross-examine the witnesses against the accused;
  2. the inability of the accused’s representative or attorney to challenge the findings of the investigative report submitted to the hearing panel;
  3. that a finding of responsibility by the panel need only be by majority vote, not unanimous; and
  4. the lack of safeguards to protect the accused’s rights against self-incrimination where may be criminal prosecution.

Harvard Law School has attempted to address some of the concerns by providing legal representation to students who cannot afford to hire an attorney, incorporating into the procedure a hearing overseen by a panel of individuals who are not affiliated with the Law School or University, and allowing cross-examination of witnesses during the hearing, while still protecting the complainant from direct examination by the accused.

The letters also highlighted the pressure schools face from the DOJ’s Office of Civil Rights, which can levy fines or withhold federal funding if a school is not in compliance with Title IX, and noted such pressure can lead to procedures that compromise due process rights for involved individuals.

Schools’ Title IX policies must comply with Department of Education regulations while preserving due process rights for accused individuals, who ultimately could pursue any perceived violation of such rights in court.