On March 8th, 2021, President Biden signed an executive order that indicated that within 100 days of the date of the order, the Secretary of Education with the Attorney General, would review the existing regulations, orders, guidance documents, policies and any other agency actions that are inconsistent with individuals being free from sexual harassment as well as discrimination on sexual orientation and gender identity. It indicated that the Secretary of Education after review would consider suspending, revising or rescinding prior policies.
This comes in the wake of prior issues that have arisen with Title IX investigations for sexual harassment on University campuses and other discrimination cases. Prior policies had issues as it related to the accused and their due process rights, such as the hearing procedure and at many times, the accused’s inability to cross-examine the accuser or properly respond to the allegations.
The prior policies focused on the protection of the victim but in the wake of the change, trampled on the accused rights while doing so. Some policies have changed since then but the policies can be unfair to both the victim and the accused. Many reverse discrimination cases from the accused have been brought due to the inadequacy and unfair process the accused have recieved.
A big issue as to the policies for the Universities, is that the process as far as the investigation, the review from the school and imposing penalties, is not a streamlined uniform process for all Universities. Universities are only given advice and guidelines and they create their own policies based on that advice. So some Universities may have better policies than others.
What also complicates the policies and procedures is if a professor is the accused on the allegations for sexual harassment. If it is a professor or employee of a public university, that individual has a constitutional right to his or her job that can only be deprived if proper process is followed.
Also, if it involves an employee, that University may have different policies and procedures on how to handle employee investigations. The University will also have different policies and procedures on how to handle Title IX sexual harassment investigations because many times it is not a public employee, there are student on student incidents. This can make the process arbitrary for employees and further deny the victim and the accused proper procedural due process.
If the Title IX policies are different than the policies for disciplining a public employee, then it can make it unclear to both parties what the process will be. The public employee may also be denied their procedural rights as a public employee if the Title IX policies are followed and not the public employee policies.
Many times, University policy indicates investigations are done through Human Resources for public employees and the supervisor is the one that first decides to impose the discipline for non-sexual harassment cases, and there is an appeal process thereafter.
The Title IX policy may have different policies and procedures on the complaint process, a response, imposing discipline and appeal. If the Title IX policy is followed, it may deprive the employee of his or her procedural due process rights.
Another big issue is how the investigations are conducted. Many Title IX attorneys across the country, including myself, are concerned about who is involved in the investigations. With a public University, including here in Utah, there is in-house counsel for the University as well as an attorney with the Attorney General’s Office that is assigned as a type of in-house counsel as well for the University. The investigations are overseen by General Counsel. Also many times, the investigations are actually conducted by in-house counsel or even the Attorney General. This creates a slew of legal issues.
First, the main issue is a conflict of interest. General Counsel’s number one role is to protect liability toward the University. If that is the role, General Counsel may dictate what should or should not be investigated. It may be able to review the final conclusions of the investigation report and suggest revisions to mitigate risk. Additionally, General Counsel and the Attorney General’s Office may also come forward and investigate all or parts of the case on their own.
Sometimes General Counsel comes out with strange decisions where it makes a finding of harassment but decides to go soft on the discipline, especially if an employee is involved. If it goes soft, then the employee is less-likely to sue. However, that is not protecting the rights of the victim and overall, protecting the security of other students. The University is only protecting itself.
If General Counsel or the Attorney General’s Office is investigating the case, then they are now witnesses to the case. Just like a police officer who is the investigator of crimes who later has to testify at trial, the attorneys would then have to testify at trial of their investigation and their findings. This is while they still represent the University. This is an ethics violation as it creates a conflict of interest. Ethically, an attorney cannot be a witness to a case and also represent someone on that case.
The only way the investigation can be fair is if the investigations are conducted by an outside neutral investigator. Both the accused and the victim can also agree to the investigator to make sure that there is an impartial investigator.
Title IX policy still has a long ways to go to ensure that rights of both the victim and the accused and hopefully changes the Department of Education makes further that commitment and we do not take a step backwards.