[co-author: Melissa Phillips, Business Development Specialist]
While many colleges and universities have traditionally crafted their own individual approaches to enforcing Title IX protections, the new Title IX regulations released in May restrict the creative freedom these academic institutions have had regarding their Title IX proceedings. However, as described below, these institutions still have the ability to shape their policies and procedures in ways that best serve their interests and those of their students.
One such change aims to provide due process protections for both parties. Many academic institutions currently rely on internal resources such as graduate students, professors and administrators to conduct Title IX hearings and render decisions. In order to guarantee due process, schools may want to take a siloed approach to Title IX matters by including in their procedures a provision for a professional third-party resource. This can mitigate bias and reduce errors due to the inexperience of those involved in conducting the proceedings.
Even if campuses are using external resources as Title IX coordinators or having one person or an external entity handle multiple functions (e.g., investigator, Title IX coordinator and hearing officer), that could result in a conflict of interest, which can create the perception of unfairness.
Additionally, one of the more significant changes is the elimination of the “single investigator” model. Whereas before one person could serve as both the investigator and decision-maker, now different individuals must participate in each phase of the process to foster impartiality. A true siloed approach requires utilizing one individual or entity to act as Title IX coordinator, another to conduct an investigation and a third to adjudicate or act as hearing officer.
An experienced, qualified adjudicator may be particularly helpful given the allowance of cross-examination by a party’s advisor of choice; another big departure from prior guidance. Cross-examination can add a very sensitive component to any proceeding and often requires an individual who has experience conducting proceedings and defusing volatile situations. The difficulty in doing so is compounded by the new rule allowing legal representatives to play a more active role. Although Title IX hearings are administrative processes, enlisting someone with a substantial legal background may be beneficial.
In another shift from earlier guidance, the new regulations allow informal resolution under specific circumstances. A future blog post will discuss how higher education institutions can incorporate informal resolution into their policies and procedures.