More Title IX in the Courts

From Inside Higher Ed: In what’s been called a “pathbreaking” and “profound” panel ruling, judges from the United States Court of Appeals for the Third Circuit on May 29 held that “fairness” as defined in colleges’ processes for investigating and adjudicating reports of sexual harassment means that students are afforded a live hearing and cross-examination process.

The three-judge panel concluded that if a college’s policy under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, promises a “fair” process to its students, as most do, the college must allow them to participate in “some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.”

This applies even if the student attends a private college, where constitutional due process guarantees are not applicable, according to the panel ruling, written by Judge David Porter. Requiring colleges to engage in such a process has been one of the main critiques of the new Title IX regulations issued by the U.S. Department of Education last month...

Full story at https://www.insidehighered.com/quicktakes/2020/06/02/federal-appeals-court-defines-fairness-title-ix-policies.

As we have noted in the past, courts have a view of due process and when universities deviate from that view, they get into trouble. Note that the decision arises from a case that predates the recent rules from the U.S. Dept. of Education. It is interesting that the article above concludes with advice from a legal researcher to private universities which essentially says to stop telling students that your process will feature "fairness":

“You’ve got to pull up every employee and student handbook and rewrite it,” (he) said.

For public institutions such as UC, the option not to promise fairness doesn't exist. As we have also noted, apart from this or that procedure, the most important element of fairness is to put the final decision - if a settlement can't be reached informally - into the hands of an outside neutral (as union grievance/arbitration processes do, including those at UC). You have to separate the investigator and prosecutor from the final decision-maker. It's then up to the neutral decision-maker to see that fairness prevails. Courts very rarely overturn verdicts of arbitrators in union-management situations.