Title IX Hearings: Are They Quasi-Judicial and What Does That Mean for Stakeholders?
By: Sydney Smith Forquer and Ashling A. Ehrhardt
Recently, headlines have been splashed with the question of whether Title IX proceedings are quasi-judicial and what legal claims parties have based on what occurs during the Title IX process. Title IX practitioners and universities are quick to note that a Title IX hearing is not a courtroom and the Title IX process is not beholden to the rules of evidence or other pillars of the legal process, so why does it matter if Title IX is quasi-judicial? Recent court recommendations and comments following this vein provide insight both into how the expected 2023 Title IX regulations, and the prescribed hearings therein, may be classified by the courts and what choices the parties may make in light of that classification.
A Title IX complainant from King’s College in Wilkes-Barre, Pennsylvania filed a lawsuit against the respondent for the tort abuse of process. See McCarthy v. Jauregui, 3-21-cv-01759-RDM, M.D.Pa. In that Title IX matter, the respondent filed a counter-complaint against the complainant after the investigation had begun. The complainant went on to file an abuse of process claim in response. The complainant’s attorney told Inside Higher Ed that the complainant has transcripts of hearings in which the respondent makes statements that the complainant “never forced him to do anything,” directly contradicting his counter-complaint. See Johanna Alonso, “A New Legal Strategy in Sexual Assault Cases,” Inside Higher Ed (June 14, 2023).
In a recent memorandum issued by the federal magistrate judge, the court commented directly on the quasi-judicial nature of the Title IX process under the 2020 regulations. To establish a claim for abuse of process, the plaintiff must show that the defendant used a legal process against the plaintiff primarily to accomplish a purpose for which the process was not designed, causing harm to the plaintiff. The court noted that Pennsylvania courts have used “process” broadly and applied it to matters that occurred in quasi-judicial administrative disciplinary hearings. Because the Title IX hearings authorized by federal regulations include procedural rights such as notice, the opportunity to be heard and present witnesses, and the right to appeal, the court determined that they qualify as quasi-judicial in that forum. Though there has not been a final ruling in this case, the recommendation by the magistrate judge that the Title IX process is quasi-judicial and thus allows for an abuse of process claim opens up other possibilities for Title IX parties to pursue similar claims in the future.
The 2020 Title IX regulations provide that a formal complaint must result in either a formal hearing or informal resolution as chosen by the parties. Formal hearings include many practices that one might expect to see in a courtroom, including cross-examination of both the parties and the witnesses. Notably, the cross-examination requirement was struck down as arbitrary and capricious in Victim Rights Law Center v. Cardona, No. 1:20-cv-11104, (D. Mass. July 28, 2021) and the Department of Education under the Biden administration decided not to proceed with cross-examination. It is expected that the forthcoming 2023 regulations will also not include cross-examination.
Meanwhile, in Connecticut, another recent court case may lend some insight into how courts will view the forthcoming regulations and whether the lack of cross-examination makes a difference in the legal protections for the parties. In Khan v. Yale University, SC 20705 (Conn. June 27, 2023), a state court ruled that a former Yale student may sue the complainant in his Title IX matter for defamation based on the complainant’s statements made throughout the Title IX proceedings.The court deemed the Title IX process used in this underlying matter prior to the 2020 regulations as not quasi-judicial. This determination was significant because the complainant in a quasi-judicial proceeding could enjoy absolute immunity from her statements in accordance with state law. However, because this matter was deemed not to be quasi-judicial, the plaintiff/Title IX respondent was allowed to move forward with his claims for defamation.
The court stated that a quasi-judicial proceeding would likely include complainant testimony with penalties for dishonesty, the opportunity to present witnesses and cross-examine them in real time, consultation with legal counsel, and recording the procedure. Though the court noted that not all of these procedures are required for a matter to be quasi-judicial, it does open up the question as to which procedures may be absent for a matter to still be considered quasi-judicial.
If cross-examination is not included in a Title IX proceeding, does that automatically disqualify it from consideration as a quasi-judicial proceeding? Potential changes to the forthcoming regulations may cause this question to be answered firmly if cross-examination is removed entirely rather than continued on an optional basis, as it is now. The ability to foresee the judicial classification of a certain Title IX proceeding may inform the parties’ choices as they advance strategically at the university level.
Current Title IX practices allow for cross-examination to proceed in a hearing under university policy but do not require the parties or witnesses to participate. From what we are seeing in these two matters, it appears a forward-thinking respondent could choose not to undergo cross-examination specifically to preserve the ability to bring a defamation suit later against the complainant. This ability could silence potential complainants and victims who may be reasonably scared of a costly and lengthy court battle from proceeding with their complaints. This is even more so the case where parties come from different financial backgrounds and have different legal resources.
In addition, it appears possible that a complainant, who may otherwise be likely to engage in informal resolution with a respondent who filed a counter-complaint, may choose to move forward to a formal hearing so the quasi-judicial proceeding may create a basis for an abuse of process claim later on. Because the formal hearing is the default proceeding in Title IX, this would not prejudice the respondent like the actions described above would potentially harm a complainant. The parties may also use the ability to bring a defamation or abuse of process claim in an informal resolution settlement as leverage.
The parties are not the only Title IX stakeholders that should be paying attention to these court cases and the interplay between Title IX and the courts. As seen in the Khan case, parties may attempt to bring claims against the university itself for its facilitation of the Title IX process. Universities, generally quick to distance their own hearings from those evidentiary hearings found in courts, may also shy away from the parties actively discussing external legal remedies in informal resolution and making decisions on how to proceed formally based on processes that may occur wholly outside of the university. The silencing of potential complainants in fear of costly defamation lawsuits could also pose a safety risk for universities where legitimate complaints go unreported. These possibilities are in addition to the roping of university personnel into lengthy court battles as witnesses.
No matter what the forthcoming regulations state about cross-examination, the ongoing evaluations of whether Title IX hearings qualify as quasi-judicial proceedings are worth paying attention to for all stakeholders. The decisions various courts make could affect not only the parties’ choices but also the university processes themselves.
Sydney Smith Forquer, an associate with Cohen Seglias Pallas Greenhall & Furman, helps individuals and companies navigate complex investigations brought by universities, state attorneys general, the U.S. Department of Justice, and other federal and state agencies. Smith Forquer can be reached at ssforquer@cohenseglias.com and 202-587-4747.
Ashling A. Ehrhardt is chair of the firm’s Title IX group. As an ATIXA-certified Level One Civil Rights investigator, she conducts investigations into allegations of sexual misconduct, discrimination and harassment at institutions of higher education. Ehrhardt can be reached at aehrhardt@cohenseglias.com and 267-238-4761.
Reprinted with permission from the August 2, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
