Due Process and the Likely Gap in Your
Title IX Investigation

Series: The Compliance Issues You Need to Know About

Welcome to the third in this series. You can read the first two articles here:

Daniel Fusch. Bev, thanks for joining me for this conversation. There have been several cases recently in which a judge has ruled against a post-secondary education in a suit brought to court by a student (or former student) accused of assault: the University of Southern California; University of Southern California, San Diego; the University of Tennessee at Chattanooga; and George Mason University, to name a few. In these cases, the judge cited the institution for lack of due process. I can’t help thinking that this may be just the crest of an oncoming wave of similar cases. Could you tell us a little about the need for due process in Title IX investigation?

Photo of Bev BaligadBev Baligad. First and foremost, institutions must understand that the hallmark of due process is fairness: fairness for all parties, whether they be complainants or respondents. This isn’t just a best practice; institutions have to be fair.

In fact, this isn’t just about a “need for due process in Title IX Investigation.” There is a need for due process to be embedded throughout an institution’s processes. Period.

Consider:

  • Lean too far in favor of a complainant without sufficient information, and the institution may have potentially acted in a biased manner against the respondent
  • Lean too far in favor of a respondent even though the information is sufficient to show that a violation (“more likely than not”) occurred, and the institution may have acted in a biased manner against the complainant.

It’s a slippery slope. It becomes all about reasonableness in light of known information. And that information gathering process (that is, the investigation) should balance the needs of both parties, and provide equal information about the process to both.

Daniel Fusch. What does that mean, in practical terms? What questions do institutions need to be asking themselves, to avoid these situations?

Bev Baligad. First, an institution has to be clear on what Title IX (at its core) requires: that we have policies and procedures in place to address complaints regarding sex/gender based discrimination. If the institution determines that a policy violation occured, they must promptly and equitably resolve the issue. It does not mean to take the side of one party over the other party before any fact-finding or information-gathering has occurred and a determination has been made.

You need to be checking (not just once but frequently):

  • Does our process tend to favor one party over the other?
  • Does the institution balance the needs of the parties (outside of the determination for interim measures, when necessary)? Are the right people in place to make sure the process is fair?
  • Do any of the institutional representatives have a bias based on the identification of the party?
  • Does the institution provide more process information to only one party, or do they meet with each party separately to provided information to both?
  • Are both parties treated with dignity and respect?
  • Does the institution collect information and witness lists from both parties or just one?
  • Does the decision maker know how to determine credibility?
  • Are the individuals involved in the process trained on a regular basis?

The big lesson to be learned from these recent rulings is to be careful. In cases where institutions were quick to provide too much deference to one party, other parties begin to questions the institutions’ processes. Make sure your processes and the people who are connected to them are fair and that they know exactly what to do.

Daniel Fusch. Is one of the challenges that investigators are sometimes driven to resolve matters quickly? Is there a risk of cutting corners out of a desire for speedy resolution?

Bev Baligad. There are certainly a variety of reasons why an investigation may cut corners or predetermine outcomes. Wanting to resolve the matter expeditiously may be one of those reasons. There could be executive pressure based on some motive (donor relations, media attention). There could be bias. But I don’t think these examples are the crux of the issue. In most cases, investigators suffer from a lack of knowledge.

Daniel Fusch. Bev, can you say more about that? What can institutions do to better prepare investigators — and where do you suspect some institutions are “missing the boat”? For example, are too many institutions doing one-time rather than regular Title IX training and certification?

Bev Baligad. Honestly, I think it’s a combination of things. Often, people are being placed into “investigative” positions without fully appreciating what a civil rights model investigation actually looks and feels like. These people often lack in-depth investigative training; surface-level training only is not enough. They may lack understanding of due process and equity (vs. “what’s equitable”). More training is needed for sure, but the added training has to be the right training, not just training for the sake of training.

You know the saying, “You don’t know what you don’t know”? That applies here. For example, how do first-time investigators know what a proper civil rights investigation looks like, if the training they attended only covers Title IX compliance? Did the training involve a constitutional background on “due process” or “fundamental fairness”? Did the training teach the differences between criminal investigations and civil rights investigations? Did the training explain what “more likely than not” looks and feels like? That is a huge point, by the way! Investigators never determine whether more likely than not the federal law (Title IX) was violated; they only investigate and determine whether more likely than not the institution’s sexual misconduct policy was violated.

Also, did the training go over how to write the report, or what that report needs to include? Not all trainings are created equal. Unfortunately, those attending the training usually don’t know what to look for in a quality training.

Daniel Fusch. Thanks, Bev!


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