The Best Gift of the 2024 Regulations: Flexibility with Live Hearings
This article was originally published in the Pennsylvania Title IX Professional’s PaTIXPros June 2024 newsletter.
To live hearing or not to live hearing? That is the question. Since August 2020, the Title IX regulations have mandated live hearings for every case, no matter what the allegations, the parties, the school, the resources and the expense. The new regulations are all about flexibility. They give colleges and universities the ability to decide what works best for them. The Department of Education (ED) realizes that there is a difference between a flagship public university and a small private college. ED recognizes that not all allegations are the same and not every case requires a live hearing with cross-examination. Colleges and universities now have the ability to choose what works best for them regarding live hearings. Embrace this flexibility as the best gift of the 2024 regulations.
Not every Title IX case needs a live hearing
The 2020 regulations have forced colleges and universities to fit into the same square peg by conducting live hearings. This is not necessary because not every case needs a live hearing. The emphasis must be on ensuring that the process is fair and equitable, which can be accomplished without every case going to a live hearing.
Live hearings are an incredible strain on resources, finances, scheduling, personnel and time. They are stressful for the parties, the witnesses and, let’s face it, the institutions, too! They require a Decision-Maker, advisors for all parties and a Title IX Coordinator who oversees the process and ensures that it is done timely and pursuant to the policies and procedures. By the time a live hearing takes place, parties and witnesses are testifying about events that are not as fresh in their minds as months have passed since the incident in question. In addition, live hearings could prevent students from reporting sexual harassment, as students do not want to be subjected to the stress of the live hearing, especially cross-examination.
Due process is still alive and well absent a live hearing. The new regulations recognize this by allowing colleges and universities to use the single-investigator model. This model will look familiar to some institutions that used it successfully before 2020. The investigator can assess credibility when meeting with the parties and witnesses at a time closer to when the incident occurred. There will be transcripts of the investigator’s meetings with parties and witnesses, allowing the parties to review the transcripts and ask follow-up questions. The investigator will then have follow-up interviews, as needed, to ask the parties questions. The investigator is the person responsible for gathering the evidence and determining what is relevant. As the person with the most knowledge about the investigation and the most contact with the parties and witnesses, the investigator is the best person to be deciding responsibility and sanctions.
Title IX cases with possible expulsion or suspension still need live hearings
While not every case needs a live hearing, there are some allegations that should still be decided by a live hearing. When a student could potentially be expelled or suspended as a result of Title IX allegations, there should be a live hearing. Pennsylvania State System of Higher Education (PASSHE) institutions are already familiar with this requirement and for good reason. An institution should afford the most due process to a student who is facing the academic equivalent of the death penalty or suspension. When a lot is at stake, a college or university must set forth a process that provides the ultimate protection for its students. The most due process, coupled with good optics, are reasons to keep live hearings around for the more serious cases.
Next steps
With the August 1, 2024 compliance deadline less than two months away, what should your institution be doing right now?
Meet with your Title IX personnel to discuss the live hearing question, both with those currently involved in Title IX but also those who were involved before 2020. Get a sense of what worked for your institution before the 2020 regulations. This institutional knowledge will be key in making a decision going forward. If your institution used the single-investigator model previously, determine what the pros and cons were of using that model. If you have no experience with the single-investigator model, talk to others who have. Your team should also discuss the pros and cons of live hearings over the last four years. Determine what worked and what did not. Consider the outcomes, the fairness, the due process, the time, the resources, the expenses. Consider whether your institution was the subject of an Office of Civil Rights (OCR) investigation or a lawsuit. All of these considerations should dictate how your institution best moves forward.
With the broader definition of sex discrimination, which now includes sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity, the amount of Title IX cases is only going to increase. Now is the time to clearly define your institution’s best path forward by using a mix of the single-investigator model and live hearings for the more serious cases involving expulsion and suspension. This flexibility will still allow for fair and equitable investigations with less strain on resources, finances, scheduling, personnel and time.
This article was published in the Pennsylvania Title IX Professional’s PaTIXPros June 2024 newsletter.
