All academic institutions in the U.S. must comply with Title IX guidelines that address concerns involving sexually-based misconduct. The U.S. Department of Education established the original guidelines and ongoing guidance and enforcement is the responsibility of the Office of Civil Rights (OCR). Each school designates a Title IX Coordinator that is responsible for implementing and maintaining procedures needed for compliance. The administration is responsible for investigating complaints, such as allegations of sexual harassment, and then gathering evidence.
Schools are afforded some flexibility in how they investigate potential violations. When the allegations have merit, the administration will summon all parties to a hearing. All parties are permitted to be accompanied by an adviser in these and other proceedings for support. One of the OCR's primary concerns is that these investigations are conducted impartially and free of any conflicts of interest.
The School's Responsibility to Maintain Equality and Fairness
The evidence is evaluated by a panel that may be composed of faculty, staff members, and students. The Title IX Coordinator must take measures to ensure that the individuals serving on the hearing panels are free from any bias or conflicting interests and that each party is treated equitably. This is particularly important among the opposing parties who are the accuser (complainant) and the accused (respondent).
Examples of Maintaining Equality in Hearings
The OCR emphasizes maintaining balance by affording the parties the same freedoms and conveniences such as the following:
- The parties must be permitted the same opportunity to introduce witnesses and other evidence
- Both parties are permitted to be accompanied by an advisor or attorney who can contribute or participate to the same extent
- If applicable, permission may be granted for both parties to call on third-party experts for testimony
- Both parties are permitted to participate in hearings remotely using current technology
- They have equal rights to appeal a ruling or decision
Title IX hearings are not intended to emulate judicial court proceedings; however, the legal definition is useful for explaining bias in this context, based on the similarity between a hearing panel decision-maker and a juror as both triers of fact. Black's Law Dictionary explains that bias is an inclination, predisposition, or preconceived notion that can influence decisions. Bias creates problems because it is capable of influencing a hearing panel member's judgment, which is supposed to be adjudicated based on the evidence.
Examples of Potential Bias in Title IX Hearing Panel Members
Betsy DeVos, the secretary of education, explained that the existence of bias in these matters is in itself a form of discrimination. There are situations where the potential for bias is clear, such as having the coach of a student-athlete respondent serving in the panel. Members of the university community that have been publicly involved in debating or advocating for issues specifically related to Title IX may be perceived as potentially biased and inappropriate for serving on a hearing panel.
Evaluating bias is challenging because it is largely based on perception. For this reason, training of potential panel members should ensure that they understand the concepts such as conflicts of interest and impartiality so they may self-evaluate. The guidelines also recognize the importance of individually assessing each potential panel member and training those involved in how to “serve impartially.”
Panel Member Disclosure and Potential Exclusion or Recusal
Colleges and universities that provide clear guidelines for how potential bias can be challenged will be to a respondent's advantage. For example, the Office of Diversity, Equity, and Inclusion at the University of Missouri have developed guidelines that clearly illustrate a process for potentially excluding individuals assigned to serve on a Resolution Hearing Panel. They provide both the claimant and respondent with the names of those that will serve on the panel at least 14 days before a hearing. Any party that potentially feels “uncomfortable” with a member of the panel may present an objection to the Hearing Panel Chair at least seven days before the hearing.
The Hearing Panel Chair is responsible for determining whether “good cause” exists to remove any individual. An example that justifies removal may include that the individual is somehow closely associated, such as a co-worker in the same department. They also encourage the individuals assigned to the panel to recuse themselves if they believe they may have an inability to remain impartial or objective.
How Bias Can Impact a Respondent
Allegations of sexually-related misconduct in colleges and universities are taken very seriously today. When the members of hearing panels that evaluate and decide on the allegations are biased, the respondent may unfairly have their educational goals shattered. When violations are proven, a respondent will likely be suspended or dismissed from the institution. Also, the student's records and transcripts will likely contain information indicating that they were the subject of these disciplinary actions; therefore, they may face challenges when seeking admission to another school, entrance to graduate school programs, and more.
Importance of Retaining a Seasoned Title IX Attorney-Adviser
Leaders within institutions of higher education today understand the importance of maintaining an impeccable image. Colleges and universities are in an increasingly competitive market and negative information travels rapidly in today's highly-connected digital landscape. Academic administrators responsible for investigating serious allegations such as those involving sexual assault are often overworked and may proceed haphazardly amid pressure to resolve the matter without properly considering the rights of those accused.
Recently, the OCR guidelines have continued to evolve and various modifications have been made; therefore, having an attorney that is familiar with this unique area of practice is critical. Your attorney may also work to be sure you are well-prepared to issue persuasive statements and effectively answer questions you are asked. He or she may engage in discussions with institutional administrators in efforts to negotiate a mutually beneficial resolution on your behalf and protect your right to due process.
Experienced Advisory Representation for Student Facing Allegations of Sexual Misconduct
Students that are facing allegations of sexual harassment, dating violence, or other acts that violate Title IX provisions are encouraged to promptly consult with a knowledgeable lawyer. Joseph D. Lento has provided effective support and assistance for clients in these matters for many years. Contact the office today at (888) 535-3686 for additional information.