Biden and Title IX: A Setback (Pt. 2)

But by far one of the most loathsome aspects of the administration’s new Title IX regulations is the return of the single-investigator model for Title IX adjudications - in which a single administrator investigates a claim, determines which witnesses to interview, and produces a report asserting guilt or innocence. Under the Obama administration’s regulations, this would involve a private meeting between the administrator and the parties involved, foregoing the use of any hearing in which accused students could challenge their accusers, all while administrators themselves were given unfettered discretion to determine which parties to interview (Soave, 2022). In the absence of the previously mentioned procedural safeguards, the return of this administrative model will undoubtedly create a system that is highly likely to favor accusing students. And as Ohio-based attorney Joshua Engel has explained, college officials do not think to fact-check the statements provided by the opposing parties, thereby spelling disaster in instances where these cases are handed to single investigators for formal adjudication (Bauer-Wolf, 2022). It is for these reasons that civil liberties advocates and Title IX practitioners detest this particular change in the law, with many seeing it as another significant element that undermines their overall faith in the Title IX process.

Under the Biden administration’s new regulations, universities would again be permitted to employ this inquisitorial model, enabling administrators and other officials to reach conclusions of guilt without the use of any hearing, cross-examination, or other notable procedural safeguards. Such a tremendous revision is deeply troublesome for students accused of sexual misconduct or harassment, as it not only curtails their ability to provide their side of the story, but also enables administrators to reach conclusions about the accusing party’s claims that may be detrimental to the accused student’s case (Soave, 2022). Moreover, instances of bias on the part of single investigators during proceedings only compound the risks of reaching poor determinations during adjudications, especially when such biases increase the likelihood of missing crucial facts that could sway the outcome of a case (Moody, 2022). It is through these elements that Professor Johnson finds the return of the single-investigator model to be the most troubling of the new changes. As he explains, "[t]he possibility of wrongful findings, almost always biased against the accused, dramatically increases under such a procedural regime." 

So misguided was the single-investigator model that hundreds of students sued their institutions, alleging that administrators violated their rights to procedural fairness and due process (Bauer-Wolf, 2022). And while courts have generally ruled fairly evenly with students and universities, judges have nonetheless issued scathing opinions regarding the overall constitutionality of the single-investigator model, and other problematic Title IX regulations. Notably, in 2016, U.S. District Court Judge F. Dennis Saylor, in Doe v. Brandeis University held that “[t]he dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions” (id at 606-07). In the hearing for the case, Judge Saylor had gone as far as to describe the procedures used by Brandeis as “closer to Salem 1792 than [to] Boston 2015” (Johnson, 2022). In 2018, the 6th circuit issued a more critical attack on the single-investigator system, finding that the University of Michigan’s model for Title IX adjudications “…deprived the [p]laintiff of his due process right to a hearing with an opportunity for cross-examination…” (Doe v. Baum, 903 F.3d 575, 726 (6th Cir. 2018)). In combination with an inability to cross-examine accusers, review compiled evidence, and access a timeline for the adjudication process, the single-investigator model only spells disaster for protecting the due process rights of accused students.

What Happens Next?

Though there are several flaws with Biden’s Title IX regulations, it is worth mentioning that they’re proposed regulations, and must undergo an extensive notice-and-comment period before they may be finalized and enacted into law. While the policies may be enacted as early as next year, there’s a likely possibility that it could take much longer, given that it took the Trump administration two years to finalize its Title IX standards. Regardless, the rules themselves represent a reversion of hard-fought, and long-overdue, safeguards for due process, free speech, and fundamental tenets of procedural fairness.

References

Bauer-Wolf, Jeremy. 2022. “Biden’s Draft Title IX Rule Would Allow the Single-Investigator Model. Should It?” Higher Ed Dive. July 5, 2022. https://www.highereddive.com/news/bidens-draft-title-ix-rule-would-allow-the-single-investigator-model-shou/626407/.

Doe v. Baum, 903 F.3d 575, 726 (6th Cir. 2018)

Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 606-07 (D. Mass. 2016)

Moody, Josh. 2022. “New Title IX Rules Raise Concerns for the Accused.” Insidehighered.com. June 30, 2022. https://www.insidehighered.com/news/2022/06/30/new-title-ix-rules-raise-concerns-accused.

Soave. Robby. 2022b. “Title IX’s 50th Anniversary Is a Dark Day for Due Process on Campus.” Reason Magazine. June 23, 2022. https://reason.com/2022/06/23/title-ix-due-process-50th-anniversary-biden-campus/