[co-authors: Elizabeth Bell*, Daniel Fay**, Emily Boykin**, Jaeyeong Nam**]
In our second blog entry, “Barriers to Student Reporting,” we reported that a quasi-legal judicial system may produce increased barriers for reporting sexual misconduct cases and, therefore, have diminished effects on reporting. When asked what policy change they would like to see to improve Title IX policy across the nation, the vast majority of our respondents cited the removal of the live hearings requirement. In this post, we share how Title IX administrators perceive regulatory requirements like live hearings on their college campuses.
Policy Background
The Education Department issued a regulation in 2020 that brought substantial changes to Title IX procedures (U.S. Department of Education 2020). Section 106.45(b)(6) requires institutions to provide live hearings with cross-examination for formal sexual misconduct complaints and also allows both parties to have an advisor(s) in the process. The new requirement states that ‘the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions’ and ‘cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.’ (U.S. Department of Education 2020, 85 FR 30577). Such live hearings “may be conducted with all parties physically present in the same geographic location or, at the recipient’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other” (U.S. Department of Education 2020, 85 FR 30577). In almost all our interviews, live hearings came up as the most important change from the 2020 regulations, which is why we dive deeper into the perceptions of live hearings below.
Federal Regulations Force Institutional Support but Also Burdens on Students
Many colleges and universities used live hearings prior to the 2020 regulator changes in order to comply with state statutes requiring or simply because leadership felt the hearings promoted due process for both parties. One participant describes:
“I would say that the big difference [the 2020 regulations provided] has been that the institution has to put resources around providing [live hearings]. I think it makes for a more equitable process, because in the past, if one party was wealthier than the other, had more parental connections, maybe had a parent that was a lawyer, they had more representation in the room… So, I think having universities provide those is actually ultimately a positive, however, it’s expensive, it’s challenging, [and] it delays the process.”
However, despite some institutions providing financial support for live hearings, some other administrators find that the burden of new regulations still falls upon survivors. For example, greater administrative, psychological, and social costs fall onto students who feel they may need third-party counsel in order to formally report sexual misconduct:
“You see people’s eyes when you’re, like, ‘you have to have investigators’… ‘we have to provide advisors’… and [complainants] are like ‘are those lawyers’ and I’m like ‘ they don’t have to be’… but [complainants] are like ‘it sounds like it should be a lawyer’ … ‘how are we gonna pay for that’ and I’m like ‘I don’t control budgets’.”
Precedent of Quasi-Judicial System for Student Conduct
Some Title IX administrators worry about the future of student conduct generally and see live hearings as a slippery slope in the ultimate transition into a pseudo-judicial system. One participant rhetorically asks: “Will those type [of] practices influence the realm of student conduct, being that… the student conduct process is very different from a civil court process?”. Another expands upon this sentiment:
“I believe [live hearings] is one of the most damaging things that we can do; to create a pseudo-court system in which that we’re either having to pay for attorney, having to make expenses, or there’s an equity [problem] there if one of the complainants or respondents has a paid attorney and then the other one doesn’t, and then [that] create[s] this pseudo-court system where they’re having to get cross-examined about some very traumatic and intimate details.”
Live Hearings as a Vehicle of Survivor Empowerment and Reduction in Discrimination
On the other hand, some Title IX coordinators believe live hearings have the potential to provide greater agency to survivors. One participant notes: “I actually find, with the right support, complainants find [live hearings] to be a valuable process; to have their voice heard by the decision-makers in a hearing, I think has a lot of value.” Another participant corroborates this statement, saying, “I think [live hearings can be] weirdly empower[ing]… it can be very empowering for [survivors] to be able to go sit in that room and share their truth…” Another participant delves into more detail on this thought:
“You know there are proponents that say [live hearings are] horrible. That [live hearings are] more trauma-inducing. But part of it, too, and the reason that I say [‘I appreciate the panel’ and live hearing process] is because one of the cases I went through, [the complainant] were like, yes, I was scared to death to see [the respondent] on the Zoom thing, but it also helped me to progress in my healing journey and be able to move forward.”
In the same spirit, Title IX administrators agree that live hearings may decrease discrimination as well as shirking by investigators. One participant notes:
“[Live hearings decrease] decision-makers just kind of going with their first gut because I’ve seen a lot of cases where the outcome and what I believe in my heart of hearts… should be, is not what it would have been if… you just had one or two [more] conversations with people… and I think that having that live hearing requirement gives more time for that full story to emerge in those really complex cases.”
Live Hearings Have a Chilling Effect and Administratively Burdensome
The overwhelming understanding among Title IX administrators, however, is that live hearings often deter students from reporting sexual misconduct cases to the university or from pursuing formal complaints. Many participants described live hearings as “unnecessarily traumatic” compared to a single investigator model, which follows a “trauma-informed” process. Indeed, one participant summarizes:
“We have absolutely had a chilling effect. When I explain to students that their case would fall within the purview of Title IX and that if they proceed with an investigation, a live hearing would be required. That’s a deal breaker. Students, generally speaking, are not comfortable taking that step, and they will tell me that if I wanted to go to a hearing, I would have reported to [the] police, and I would have tak[en] a stand… Like, they’re coming to the college for a really specific reason, and that is usually not it.”
Yet, the chilling effect goes beyond student reports. Participants share that the 2020 regulations “are harmful to students in particular, and [I think] harmful for employees as well.” Title IX administrators recognize that live hearings are “difficult to schedule” and “very time and labor intensive,” which simultaneously trickles down into student experiences as these administrative heavy tasks “keeps [a] student[s] from pursuing” reporting and live hearings.
References
Lee, R. D., & Greenlaw, P. S. (2015). The legal evolution of sexual harassment. In Public Personnel Administration and Labor Relations (pp. 241-254). Routledge.
McLain, L. (1980). The EEOC Sexual Harassment Guidelines: Welcome Advances Under Title VII. U. Balt L. Rev., 10, 275.
Office for Civil Rights. (2001). Revised sexual harassment guidance: Harassment of student by school employees, other students, or third parties. https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
Rammell, N. (2014). Title IX and the Dear Colleague Letter: An ounce of prevention is worth a pound of cure. BYU Educ. & L.J., 135.
Monroe, S. (2006, January 25). Dear colleague letter. Washington, DC: U.S. Department of Education, Office for Civil Rights. https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html
Ali, R. (2011). Dear colleague letter. Washington, DC: U.S. Department of Education, Office for Civil Rights. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
Wies, J. R. (2015). Title IX and the state of campus sexual violence in the United States: Power, policy, and local bodies. Human Organization, 74(3), 276-286.
Pappas, B. A. (2016). Dear Colleague: Title IX coordinators and inconsistent compliance with the laws governing campus sexual misconduct. TulSa l. Rev., 52, 121.
Jackson, C. (2017). Dear colleague letter. Washington, DC: U.S. Department of Education, Office for Civil Rights. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf
Doe v. Baum, No. 17-2213 (6th Cir. 2018)
U.S. Department of Education. (2017). Q&A on campus sexual misconduct. https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
U.S. Department of Education. (2020). Nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance. Federal Register, 85(97), 30026-30579.
Tune in to the third installment to understand how Title IX officers are coping with the complex policy environment and the burnout and emotional burdens they face.
*University of Texas at Austin
**Florida State University
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