National Survey: Public Favors Live Title IX Hearings

In early May, the U.S. Department of Education released new regulations updating the policies and procedures by which colleges and universities implement Title IX of the Education Amendments of 1972. Not without controversy, the revised regulations mark significant changes for the investigation and adjudication of sexual harassment on college campuses. However, the new regulations effectively increase due process protections for all students, including those accused of sexual misconduct. 

A recent poll conducted by Fairleigh Dickinson University, the FDU Poll, sponsored by Nesenoff & Miltenberg, indicates that while there is general agreement that allegations of sexual misconduct should be addressed with fairness, public opinion was slightly less confident on how certain requirements should be applied in a university setting. The poll focused on one of the more controversial changes, the requirement for live hearings with an opportunity for cross examination, which remains a “hotly contested issue,” according to attorney Andrew Miltenberg.

After rescinding the guidelines enacted by the Obama-era 2011 “Dear Colleague Letter,” Secretary of Education Betsy DeVos held an extended public comment period during which over 100,000 responses were considered. In 2017, interim guidelines were issued and in May 2020 the new regulations were published as the Final Rule, becoming effective on August 14, 2020.  Despite the lengthy transition, over half of the 1003 adults questioned in the FDU poll had read or heard “nothing at all” about the proposed changes to Title IX regulations. Miltenberg notes, “Due process is something we as Americans sometimes take for granted, but it is a basic protection that has been completely overlooked when it comes to how college campuses handle sexual misconduct investigations.”  However, an encouraging statistic also emerged – 84% of those asked agreed that “all students (should) be given the same legal protections” rather than colleges being allowed to create “their own policies for handling sexual assault complaints.”

Under the former guidelines, universities were allowed to ignore due process and fundamental fairness by employing models for investigation and adjudication conducted by a single administrator or outside attorney. The new rules mandate fair and impartial live hearings to determine responsibility and corrective action, if any, unless the parties agree to informal resolution. While live hearings must occur in real time, they are not required to be conducted face-to-face, with the complainant and respondent in direct contact. In the FDU poll, 62% of those asked favored such in-person courtroom style hearings, while two-thirds also favored remote hearings with the same allowances for cross examination, assuming they or a loved one had reported being sexually assaulted while attending college. In both scenarios, students would participate with the assistance of advisors. Notably, remote hearings via video conference have become the norm due to COVID-19; however,  technological challenges have once again created an unlevel playing field.

Quite often, Title IX cases hinge on a “he said-she said” scenario for which credibility serves as the sole criteria to prove or disprove an incident of sexual misconduct. When combined with trauma-informed investigative techniques and the inability of respondents to question the credibility of the accusations, the process almost universally favors the complainant, whose account is seldom questioned either during the investigation or the subsequent hearing. Far from allowing direct confrontation, the new regulations permit cross examination by a student’s attorney or representative, affording all parties a fair opportunity to test the credibility of the evidence. Miltenberg explains, “On one hand, you don’t want to turn every sexual assault hearing into someone towering over and berating the complainant. On the other hand, there has to be a manner in how you can, in real time, question statements made by a complainant or witness.” 

Unlike the divisive and heated dialogue among lawmakers and activists, political affiliation did not appear to play a significant role regarding support for some sort of live hearing. For example, the FDU Poll found that Democrats and Republicans alike favored remote hearings 69% and 65% respectively. Miltenberg explains, “While the Department’s new Title IX guidelines have been met with political controversy, this survey shows the majority of Americans recognize the need for a live courtroom style hearing with the assistance of attorneys when it comes to these life-altering accusations. No matter what our politics may be, we should all agree that Title IX policies need to ensure that all students — both male and female — have the right to due process and a fair and impartial investigation.”

Our attorneys are Title IX defense specialists and we have helped hundreds of accused students and faculty across the country who have been treated unfairly by their schools. Call us at 212-736-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights, ensuring a fundamentally fair process, or establishing the deficiencies that will lead a court to reverse the school’s adverse findings. There is no fee for a private consultation.

At Nesenoff & Miltenberg, LLP, personal attention is a priority. All calls are returned within 24 hours and our clients work directly with their experienced attorneys. 

Since every school’s procedures are different and each individual situation is unique, this blog does not constitute legal advice.