One talking point emerging from the release of the Proposed Title IX Rule is that colleges and universities are going to abandon live hearing models in sexual misconduct resolutions. However, rumors of the death of live hearings are probably off-base. Instead, we may see a return of policy experimentation, including “hybrid” or “indirect” approaches popularized in the late 2010s, and an emphasis on the public-private distinction critical to policy-making in this space.

Public institutions are likely to continue holding live hearings, though not all will use the approach enforced under the current Title IX regulations. Private institutions, meanwhile, may elect to return to a single-investigator model or continue to develop hybrid approaches combining an investigation with some opportunity for questioning, whether live or indirectly through an investigator or decision-maker.

Public institutions and colleges and universities within certain jurisdictions will continue to provide parties with a live hearing in cases that rest on the “credibility” of the parties and could result in major sanctions.

For example, public institutions in the Sixth Circuit must follow the opinion in Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (due process would require some form of live cross-examination in “credibility” cases) while their colleagues in the First Circuit need only provide indirect questioning through a hearing panel. Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 68 (1st Cir. 2019).

Other jurisdictions that have not squarely weighed in on the issue of due process and cross-examination may soon find the issue ripe for consideration as colleges and universities adapt to the proposed regulations once they are final and effective. E.g., Doe v. Purdue Univ., 928 F.3d 652, 663 (7th Cir. 2019) (declining to address if due process required live cross-examination).

While federal and state courts have taken different positions on what due process requires in these cases, none have mandated the advisor-based live cross-examination required under the 2020 Final Rules. The Sixth Circuit, for instance, has stated that when necessary, live cross-examination may be conducted by the parties or their representatives. Baum, 903 F.3d at 583.

Meanwhile, Circuit Courts of Appeal continue to hold that due process standards applicable to public institutions, including a right to cross-examination either by an advisor or by a hearing officer, need not apply to a private institution unless required by state law, judicial opinion, or the institution’s own policies. Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 2019). And we have seen some jurisdictions, like the Third Circuit, interpret the meaning of a “fair” process at a private institution that guaranteed a fair process under its code to include “a live, meaningful, and adversarial hearing and the chance to test witnesses’ credibility through some method of cross-examination.” Doe v. Univ. of Scis., 961 F.3d 203, 215 (3d Cir. 2020).

One clear trend, then, is that if a private institution intends to move away from a live hearing model, it must mindfully draft policies that communicate the specific rights afforded to students and employees. Saying one offers a “fair” policy may open the process to challenge based on competing and evolving understandings of fairness in this context.

Crafting a compliant policy under the new proposed rule will require a careful consideration of several factors, including your institutional type, the law of your state and federal jurisdiction, and the fundamental expectations of your campus community. Grand River Solutions Title IX and Equity experts can help revise your policies and procedures when the Final Rule is published.