An op-ed recently published in the Los Angeles Times criticizes the upcoming amendments to Title IX regulations. While the piece makes a good point on the need for experienced panel members to hear allegations of sexual misconduct, it fails to undermine the need for more procedural fairness for accused students.

Op-Ed Article Claims that Title IX Amendments Won't Make Cases Any Fairer

The article, “New federal rules on campus sexual misconduct will only make things worse,” was published in the Los Angeles Times on January 21, 2020, and subsequently published in other newspapers, as well.

In the piece, the author, Brett A. Sokolow, who is also the president of the Association of Title IX Administrators, claims that the upcoming amendments to Title IX law are not the right changes to make. Instead, he claims, they will only lead to “years of litigation and political battles” because they fail to solve what he sees as the central problem to sexual misconduct hearings and investigations: Inexperience in the hearing panels.

Inexperience on Hearing Panels is an Underappreciated Problem in Title IX

The article does have a point. One of the most overlooked problems in Title IX law is the fact that the case is often heard by panels of judges who are completely out of their element when it comes to using evidence and testimony to determine what happened. While the makeup of the hearing panel for a case of alleged sexual misconduct depends on the school, most hearing panels are mixtures of faculty members, school staffers, and even students.

These are not judges. It would be rare, indeed, for any of them to even be lawyers. That is not an empty problem, either: People who don't understand the law are unlikely to see through weak, illogical, or purely emotional arguments as they are being made in real-time. They may not even have a full understanding of their role, as judges.

Injecting Procedural Fairness Into Hearings Will Help to Offset Lack of Experience

However, unlike what Mr. Sokolow claims in his op-ed piece, modeling Title IX hearings more closely to the criminal process can help inexperienced judges come to the correct conclusion and keep them from being persuaded by bad arguments.

By letting the accused student cross-examine their accuser when the case hinges on credibility, it gives judges the opportunity to weigh the different sides of the story, rather than forcing them to speculate and judge blindly. By giving accused students the opportunity to see what they have been accused of doing before being questioned, judges can see a defense that is thoughtful and planned, rather than hectic and improvised, and can be prevented from frowning on the lack of preparation.

Joseph D. Lento: Title IX Defense Lawyer and a Nationwide Title IX Advisor

Joseph D. Lento is a lawyer who defends students, staffers, and faculty members who have been accused of sexual misconduct. He is also a national Title IX advisor. Call his law office at (888) 535-3686 or contact him online for help.