While some educational institutions are waiting for the pending federal regulations to be finalized before changing their Title IX policies and procedures, recent court opinions illustrate that the judicial branch is eager to address due process concerns ahead of the U.S. Department of Education’s proposed regulations.
In other words, the courts aren’t waiting.
This, of course, becomes an important consideration for higher education administrators and counsel, who must either react swiftly to new case law or risk becoming the seminal case in their jurisdiction that would lead to requiring schools to institute hearing models.
I regularly speak with campus officials about their current Title IX processes, and I have learned that just as policies and procedures are unique to their institutions, so too are the perspectives of whether or how a hearing model should be effected. Many universities are frantically adopting interim measures to comply with current case law in their respective jurisdictions, mindful of the due process challenges they face by delaying such revisions. For example, California now requires a hearing model for Title IX cases involving serious disciplinary sanctions for a respondent in order to satisfy due process protections. Schools in California are further compelled to adopt a hearing model utilizing “neutral adjudicators.”
I find that colleges and universities have the best intentions in drafting rules and procedures to protect their students and institutions, yet they often face media scrutiny and litigation following Title IX actions based on some familiar patterns.
One pattern concerns perceptions by students and third parties that an institution is biased in some manner. This is being addressed by schools moving (voluntarily or to comply with case law) from single-investigator models to hearing models.
Another criticism—and indeed one that administrators mention to me regularly when we speak about incorporating JAMS hearing officers into their programs—is the reluctance of school administrators to have their internal resources serve in a quasi-judicial role. This is fueled by concerns over the qualifications of those serving in roles that could result in serious sanctions (and liability) as well as apprehension about distractions from their primary roles as students, professors and administrators.