Since Trump’s historic Title IX regulations were finalized in 2020, live hearings–specifically cross-examination–persist as a pressing topic across college campuses.
Currently required for all Title IX adjudications (permitted but not required for K12 institutions), live hearings were first introduced as an avenue to protect party rights in a case. Even with the promise to bolster due process, however, live hearings come with heavy controversy.
Biden’s proposed regulations allow for hearings’ elimination entirely, but will schools save time, funds, and resources if they remove them?
Controversy and Support
Critics argue that the cross-examination component re-traumatizes complainants and even discourages overall reporting. Although parties cannot cross examine each other directly, they still see, hear, or even sit in the same room as the other party, creating potentially more distress.
Proponents believe that live hearings ensure due process for parties and allow for more thorough and unbiased investigations. Cross examination also provides a final opportunity for parties to speak to their credibility, challenge testimony, answer lingering questions, and allow decision-makers to rely on the most information possible.
Biden’s Proposed Changes
The Biden administration’s proposed Title IX regulations aim to create balance in promoting equal party rights and determining credibility without requiring live hearings and cross examination.
This change, if implemented, would provide colleges and universities flexibility in choosing between live hearings and informal resolution methods, such as mediation or a hybrid model.
Regulations specify, however, that while live hearings will no longer be required, a process that allows for questioning must still exist:
“A process to assess credibility of parties and witnesses, when necessary, that includes either:
Allowing the decision-maker to ask relevant and not otherwise impermissible questions in a meeting or at a live hearing, and allowing the parties to propose relevant and not otherwise impermissible questions for the decision-maker or investigator to ask during a meeting or live hearing.” § 106.46(f)(1)(i)).
Given these caveats, Title IX professionals might wonder if it’s more efficient to continue with live hearings as-is rather than conduct ongoing separate meetings with parties and decision-makers.
Implications for Title IX Professionals
Title IX Teams in higher education must decide which adjudication option allows for efficient use of time and resources while honoring party rights and protections.
Even if federal law no longer requires live hearings, some states’ legislation mandate them regardless. Title IX professionals must recognize this judicial precedent and plan accordingly.
Eliminating live hearings may sound more bearable for involved parties, but will a potentially more complicated, time consuming credibility process create relief? Finalized Title IX regulations will hopefully answer these questions and enable administrators to choose what’s best for their campuses.
How We Can Help
For up-to-date information on all Title IX changes and how they affect you and your institution, join us for Title IX Thursdays on the first Thursday of every month.
For more information about our Title IX consulting services, including advising, hearing adjudication, and investigation, contact us at info@titleixconsult.com.