One of the most disturbing aspects of the Title IX process, when it involves allegations of sexual misconduct, is how ill-equipped colleges and universities are at handling complicated cases that require intensive factual inquiries. These are not judges or expert fact-finders hearing the case. They are faculty members, staffers, and sometimes even students trying to sort fact from fiction.

Worse, with the school's federal funding looming over the inquiry, there is an ulterior motive pressuring the outcome to fall a certain way.

Nowhere were these problems on more of a display than in the recent Title IX case that went to the federal appellate court in Michigan, Doe v. Baum.

The Facts of Doe v. Baum Highlight the Weaknesses of Title IX Hearings

Doe v. Baum involved a fact pattern similar to most Title IX allegations that involve sexual misconduct or rape: A boy and girl hooked up at a fraternity party. According to the boy, the girl was “an active participant in their sexual encounter.” According to the girl, she was “drunk and unaware of her surroundings” and did not consent.

When the girl filed a Title IX complaint with the college, the Title IX officer assigned to the case interviewed no fewer than 23 other witnesses who had been at the party. According to the court, “almost all of the male witnesses corroborated [the boy's] story, and all of the female witnesses corroborated [the girl's].”

In the end, the Title IX officer – the only one who actually talked to any of the witnesses – determined that “the evidence supporting a finding of sexual misconduct was not more convincing than the evidence offered in opposition to it,” and recommended the school's administration rule in favor of the boy and the case be closed.

The girl appealed that decision.

Appeals Board Sees Credibility Without Interviewing a Witness

The school's Appeals Board reviewed the Title IX officer's report, but did not admit new evidence and never interviewed any of the students. All of the evidence that the Board reviewed was paper documentation.

Nevertheless, the Appeals Board found the girl's story “more credible” than the boy's, and that the witnesses in favor of the girl “were more persuasive.” The Appeals Board overturned the Title IX officer's recommendations, went straight to the sanctions phase, and the boy elected to withdraw from college rather than face the possibility of expulsion.

Appellate Courts Should Defer on Credibility Judgments

People outside the legal field might not know why they should be appalled by the conduct of the Appeals Board in Doe v. Baum, so it does bear some explication. Simply put, appellate courts that only have the record to review – like the college Appeals Board – strongly and adamantly defer to the fact-finder's decisions about who was credible and who was not. After all, appellate courts understand that a person's mannerisms and persona can say far more about their credibility than the words they speak and that the only person with access to those signs of credibility is the person involved in the interview or testimony. That is why appellate courts only overturn a lower court's decision when it was clear, obvious, and incredibly apparent that someone was lying: Appellate courts recognize that they are in a poor decision to make such an important judgment. It is one of the fundamental differences between trials and appeals in the court system.

Appeals Boards hearing Title IX cases, however, seem to not understand that fundamental difference, or why it exists.

Joseph D. Lento: Title IX Defense Lawyer and National Title IX Advisor

Joseph D. Lento is a Title IX defense lawyer and national advisor. Contact him online or call his law office at (888) 535-3686 for help.