Department of Education Focuses on Title IX and School Disciplinary Policies

Title IX is a landmark civil rights law, passed as part of the Education Amendments of 1972, that prohibits sex discrimination in federally funded education programs and seeks to address all forms of sex discrimination, including sexual assault, that would deny a student access to education. Advocates for sexual assault survivors and civil liberties groups have pushed back on changes that they argue will make students less likely to come forward and report abuse.

As a result of the proposed rule change to Title IX, it is likely that the new guidelines will apply to all schools and that all school disciplinary policies will need to apply basic due process and fairness standards to the investigative process. Moreover, it is likely that the standard of proof for these allegations will require a higher standard of proof of findings.

During the Obama era, in a “Dear Colleague” letter sent in 2011 to more than seven thousand schools, the US Department of Education’s Office for Civil Rights provided guidance to schools to discipline accused students if evidence demonstrated that misconduct was “more likely than not” to have occurred, also known as the preponderance of evidence standard.

As a result, it has become commonplace for schools to deny accused students access to the complaint, evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses, or maintaining counsel. In announcing the new proposed rule, the DOE said that it “seeks to ensure that all schools clearly understand their legal obligations under Title IX and that all students clearly understand their options and rights.”

Recent case law and the DOE’s proposed rule signals that due process mandates a higher level of evidentiary proof than a preponderance of the evidence to adjudicate a student’s responsibility.

Previously, a court in California noted that the requirements of due process and fundamental fairness can be “instructive.” See Doe v. Allee  (2019) 30 Cal.App.5th 1036, fn. 30. The court in J. Lee v. University of New Mexico, et al., No. CIV 17-1230, slip. op. at 3 (D.N.M. Sep. 20, 2018) held that preponderance of the evidence is not the proper standard for disciplinary investigations leading to a student’s expulsion, “given the significant consequences of having a permanent notation such as the one [University of New Mexico] placed on [student’s] transcript”).

The court in Doe v. University of Colorado, Boulder through Board of Regents of University of Colorado (D.Colo.2017) 255 F.Supp.3d 1064, 1082, fn.13 also stated that, “at a minimum, there is a fair question whether preponderance of the evidence is the proper standard for disciplinary investigations such as the one that led to Plaintiff's expulsion ... Given the significant consequences of such a permanent record, it is at least open to debate whether ... due process requires a stricter standard of proof.”

Two recent California cases also required basic due process and fairness standards to the evidentiary process. The court in Doe v. Allee required an immediate shift to the live hearing cross-examination model for Title IX cases in California universities. The court held that:

“fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross–examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.”

— Doe v. Allee (2019) 30 Cal.App.5th 1036

The court in Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, reh'g denied, (Dec. 27, 2018) held that accused student was denied a fair hearing due to the investigator's failure to personally assess credibility of critical witnesses.

Those in the education space should take care to ensure that their policies and procedures continue to comport with these due process and fairness considerations. Investigative procedures should include a heightened level of appropriate due process in the procedures, which would include the:

• Right to counsel during the formal investigative procedure;
• Right to cross-examine witnesses;
• Right to examine evidence; and
• Right to present evidence.