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How to improve Title IX: Part II

On how to make adjudicating sexual misconduct more fair

Yesterday, we wrote about the standardization of elements of Title IX — in particular, standardizing who should oversee investigations and standardizing whether parties should have a right to have counsel or advisers present. In our opinion, the national standardization of these two practices could improve the adjudication of sexual misconduct at colleges and universities, as well as make it easier to compare schools’ respective adjudicative practices.

We have two additional proposals that would make adjudicative processes more fair.

According to the U.S. Department of Education’s document explaining Title IX, the Office of Civil Rights “does not require that the school allow a complainant to be present for the entire hearing; it is up to each school to make this determination.” While it is true that “if the school allows one party to be present. . . it must do so equally for both parties,” the possibility of allowing panels to conduct hearings without either party present is alarming. This creates a lack of accountability and a lack of transparency for both the complainant and the accused, which would make it especially difficult to lodge complaints against schools’ panels if they mishandle cases, or to document that mishandling. If either party feels compelled to be at his or her hearing, this should be permitted.

A second concern is that, according to the same document referenced above, Title IX “does not require that a school provide an appeals process,” though the Office of Civil Rights recommends it. The crux of any judicial system — even a school’s disciplinary one — is the possibility of appeal, especially if cases are mishandled or new evidence comes to light. It is essential to have checks on all systems. For a panel to definitively determine a person’s guilt or innocence — or the legitimacy of an accusation — without any chance for reevaluation prevents those unfairly convicted, or those whose complaints are not given proper investigation or weight, from effectively responding to the result of the initial hearing or trial.

While our above two suggestions and our suggestions from yesterday do not by any means encompass all the reforms necessary within Title IX, we believe this is a good start. A federal check on how schools investigate and adjudicate sexual misconduct is necessary — but that check must itself be clear and fair to work.

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