Raul Jauregui US Department of Education public comment on how due process or fairness requires schools to supply lawyers to students
TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR SUPPRESSION OR ADMISSION DURING HEARINGS
Department of Education Notice of Proposed Rulemaking
Docket No. ED-2018-OCR-0064, RIN 1870–AA14
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Submitted January 20, 2019
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com
TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR SUPPRESSION OR ADMISSION DURING HEARINGS
Draft Rules involved (emphasis added to the proposed supplied lawyer provisions):
§ 106.45 Grievance Procedures for formal complaints of sexual harassment.
(b)(3)(vii) For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice, WHO SHALL BE AN ACTIVE MEMBER OF THE BAR OF ANY STATE AND SHALL BE SELECTED BY THE PARTICIPANT AND SUPPLIED BY THE RECIPIENT, notwithstanding the discretion of the recipient under subsection 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party for to conduct cross-examination. All cross-examination must exclude evidence of the complainant’s sexual behavior or predisposition, unless such evidence about the complainant’s sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent. At the request of either party, the recipient must provide for cross-examination to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party answering questions. The decision-maker must explain to the party’s advisor asking cross-examination questions any decision to exclude questions as not relevant. If a party or witness does not submit to cross-examination at the hearing, the decision-maker, ON THE MOTION OF THE LAWYER FOR EITHER PARTY, must not rely on any statement of that party or witness in reaching a determination regarding responsibility;
Forcing schools to supply lawyers for all participants is the only way to preserve the participants’ due process or fairness under Title IX:
A. Achieving the Real Due Process or Fairness Required During a Live Hearing Creates a Professional Competence Problem for Participants:
Juan and Jane, sophomore and junior respectively, are friends who end up in Jane’s dorm room where they agree to teach each other kissing techniques. Sometime later, Jane accuses Juan of untoward behavior during that meeting. Jane files a formal Title IX complaint invoking these Draft Rules and triggering a live hearing.
The school documents that Jane’s friend Mary saw Jane crying after that night and that Mary has spoken to the press criticizing the school’s Title IX enforcement. The school also documents that Juan’s friend Peter saw Jane and Juan go to friendly meals several times after that night. Jane’s mom, an alumna who donated the school’s science auditorium, writes stating that Jane has a history of making-up attention getting stories. Juan states that it was Jane who kissed him in a place he did not want to be kissed that night, and that a Dean threatened to remove his financial aid in light of Jane’s complaint.
Jane, Juan, Mary, and Peter testify at the live hearing. None of them has ever been in any adjudication before. All of them look to the school’s staff as authority. (1). Obeying Draft Rule § 106.45 (b)(3)(vii) the school allows Jane an advisor. She asks a psychologist. Juan asks a banker who belonged to his Fraternity. Juan is expelled and sues the school, claiming sex discrimination and due process (or fairness if the school is private) violations. Juan’s complaint brims with details about the school and Jane to make it plausible enough to survive a motion to dismiss. (2) Thus, because non-lawyers usurped roles only lawyers can fulfill, part of Juan’s litigation will focus on the systemic failure of due process during his live hearing as a cause of his gender discrimination.
B. Title IX Live Hearings Without School Provided Lawyers Violate Title IX’s Guarantee of Procedural and Substantive Due Process or Fairness.
In the trauma of the hearing, Juan and Jane fail to effectively question each other, to address credibility, to point out inconsistencies, as well as to move to admit or to suppress evidence. Instead, Juan told the former judge who serves as the school’s adjudicator of choice (3) what his advisor told him to state: his life as a man of color, son of immigrants, and successful member of the swim team. Jane tearfully stated as her advisor suggested that the hearing’s re-traumatization validated the school’s patriarchy and did nothing to stem her pain or the campus rape epidemic. (4). On this fact pattern it is not clear if either party violated Title IX. What is clear, however, is that Juan did not benefit from the real procedural or substantive due process which these Draft Rules guarantee for him because the school did not provide him with a lawyer. As a corollary, Jane will have her re-traumatizing day in court made tougher by the fact that the school also did not provide her with a lawyer. (5). Thus, for the school to not provide lawyers obfuscates the real due process or fairness promised in Draft Rule § 106.45 (b)(3)(vii).
Because they are not lawyers, Juan and Jane failed to achieve any due process or fairness by noting violations which would have been fatal to either the complaint, or its response. These violations, where the stakes play with the respondent’s life and the complainant’s safety, are complex. And while the hearing-related procedural due process promise in Draft Rule § 106.45 (b)(3)(vii) guarantees students a right to be heard, students are not heard well, given the complexity of what they have to speak, without legal representation. This flaw and its effect, the hearing’s loss of legitimacy, in turn, cause everyone to call school adjudications kangaroo courts. (6). Similarly, the hearing-related substantive due process promise in Draft Rule § 106.45 (b)(3)(vii) guarantees to students that the arbitrary taking of their education will not happen, namely, that gender will not be used against them, but gender will be used against them absent a lawyer. (7). Students cannot adequately argue these esoteric due process points at a hearing without legal representation, even assuming they were not traumatized, had any reason to suspect these arguments, and possessed the skill to state them. In addition, violations of due process is what the bulk of reverse-Title IX law grows out of and these need to be legally preserved on the hearing’s record (8). However, as Draft Rule § 106.45 (b)(3)(vii) now stands, with no provision for lawyers for both parties, it expects a neophyte to effectively argue all this, weaving facts and law into a story that carries the day. This is not just impossible (even among law students) but also in conflict with the requirement in Draft
Rule § 106.45 (b)(3)(ii) that the school shall provide equal opportunity. Thus, absent school-provided lawyers, the live hearing fails to achieve any of the real due process promised in Draft Rule § 106.45 (b)(3)(vii).
Consider the result with real due process at the hearing through the school’s provision of lawyers for each side. First, to exonerate Juan, his lawyers would have secured Peter’s evidence of Jane’s confirmation in a sworn affidavit. His lawyers would have scoured the record for the treatment of Juan’s accusation against Jane. Finally, they would have argued the record’s gender bias such as in the Dean’s threat, and would have introduced inconsistencies including Jane’s greater age and her close relation to the school’s fundraising effort. (9). Importantly, lawyers for Juan would not have cross-examined Jane angrily, but rather would have found an ethical way to elicit her reaction to these facts. (10). Second, to exonerate and to protect Jane, her lawyers would have prevented Mary’s testimony as it suggests gender bias, noted that Peter proves that Juan also confirmed Jane’s touching, and defined how this experience actually denied Jane’s educational benefits as guaranteed under Title IX. Third, to lessen the school’s liability, the joint efforts of Juan’s and Jane’s lawyers would allow the adjudicator to act as a more impartial actor (11) who learns systemically biased evidence against Juan from the school, (including, for example, that they simply do not trust him because he is a man, or that they clearly have an interest in protecting Jane because she is a woman, (12)) and who then impartially selects the competing evidentiary record that supports either outcome.
C. Schools Need to Provide Real Due Process and are Optimally Placed to Budget, and to Supply, Lawyers for Complainant and Respondent.
It makes little sense for the school to have spent on the hearing, but to not have supplied Jane and Juan with lawyers for it to cure its fatal flaw of no real due process or fairness. If that is education today, then schools should allow students into the classroom to self-teach, and dispense with the faculty. If that is education today, all schools should stop attracting applicants with promises of due process or fairness in Title IX. (13). Yet, even under Draft Rule § 106.45 (b)(3)(vii), schools will violate Title IX’s promise with the illusory nature of the live hearing because there is no due process or fairness for anyone who appears without a lawyer. Only the school can cure this flaw by providing lawyers (14). And only lawyers at live hearings help assuage the schools’ brand name loss and the professional chaos that accompanies Title IX litigation. (15). Further, only schools can externalize the potential expense of supplying lawyers through their tuition, just as they now do for athletic activities and the like. (16). Thus, the fundamental need to provide lawyers is self-funded and best amortized by the schools.
Draft Rule § 106.45 (b)(3)(vii) requires the school to provide for live hearings to maintain due process or fairness. As a corollary, due process imposes an inchoate duty on the school to pay the lawyers for participants because only then does the live hearing empower students to be heard and to avoid arbitrary punishment. Absent lawyers, it is the adjudicator who applies a web of esoteric rules (of procedure, evidence, and these Draft Rules) necessarily against or in favor of one of the parties. And while schools continue to claim that a live hearing is an administrative procedure, that is not so. (17). Thus, like it or not, schools must supply lawyers for these adjudications because fundamental rights are at stake. (18). Finally, for schools to have counselors and other non-lawyers appear on behalf of participants is a morally wrecked practice that could be prosecuted as unauthorized practice of law. (19). That is a claim that many could raise independently from any Title IX lawsuit against the school. (20). Thus, the suggested amendment to Draft Rule § 106.45 (b)(3)(vii) establishing that schools will supply lawyers for complainants and respondents is the only way to allow participants to achieve and benefit from real due process or fairness as is promised in these Draft Rules.
For years after graduating from UCLA Law School I did not know about campus rape, false accusations, Title IX, the Clery Act, or VAWA. But while I have been in those trenches since that crisis came to the limelight, this personal concern over the Draft Rules reflects the fair protection I want from Title IX if I go back to school. Thus, none of this comment constitutes law practice, opinion of law, or a legal advertisement. (21).
Thanks for your kind attention.
/s/
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
ENDNOTES:
1. See, e.g., “Students often identify with and trust—even love—their schools, and are dependent on them in many ways. Students frequently believe the institutions they dreamed of attending will identify with and want to help them. Uncovering and living through the slowly unfolding nightmare of its other agendas and higher priorities comes as a shock…Accounts of institutional betrayal litter the mainstream press, social media, and Title IX case law.”
In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, Catharine A. MacKinnon, Yale Law Journal, Vol. 125 No, 7, May 2016, available at:
2. One way to secure the pleading of short complaints consists of national adoption of the Second Circuit’s standard in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016) which extrapolated the burden-shifting framework first used for race claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) to reverse-Title IX. Under this vastly more equitable pleading approach, “the plaintiff needs to present only minimal evidence supporting an inference of discrimination in order to prevail [on a motion to dismiss.]” (Columbia Univ., 831 F.3d at 54). The 2nd Circuit held that “the temporary presumption afforded to plaintiffs in employment discrimination cases under Title VII applies to sex discrimination plaintiffs under Title IX as well.” (id). The court held that Title IX claims have so much in common with Title VII claims that on “certain sorts of facts, rules the Supreme Court established for Title VII litigation appear to apply also to such similar claims of sex discrimination under Title IX.” (id at 55).
See, also, Bethany A. Corbin, Riding the Wave or Drowning?: An Analysis of Gender Bias and Twombly/Iqbal in Title IX Accused Student Lawsuits, 85 FORDHAM L. REV. 2665, 2666 (2017) arguing that: “…most courts erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a misinterpretation of plausibility pleading, these courts hold that accused perpetrators have not shown causal evidence of discrimination at the outset of the lawsuit. This pro-dismissal approach, however, violates Swierkiewicz v. Sorema N.A.’s proclamation that a plaintiff need not plead a prima facie case of discrimination in the complaint.” Professor Corbin’s article is available at:
3. It is not the case that an independent contractor working as a legal mediator, which most often Title IX provisions in schools’ manuals call an “adjudicator,” works as an independent and impartial agent. The contractor develops skills that are only marketable to one audience: The schools. That relationship creates bias in favor of the schools:
“Over the last 10 years, thousands of businesses across the country — from big corporations to storefront shops — have used arbitration to create an alternate system of justice. There, rules tend to favor businesses and judges and juries have been replaced by arbitrators who commonly consider the companies their clients, The Times found.”
Jessica Silver-Greenberg and Michael Corkery, In Arbitration, a ‘Privatization of the Justice System’, The New York Times, November 1, 2015, available at:
See also, When Choosing the Right Mediator Don't Overlook Implicit, Cognitive Biases, Robert H. Barron the Legal Intelligencer,| September 14, 2018, available at:
4. Every decent person shares the concern that many women have been subjected to unwelcome conduct or pressure while studying in the United States. However, the claim that one in five women is sexually assaulted in college, a claim that has long been the basis for advocacy efforts, school disciplinary procedures, and government policy decisions, is based on anonymous surveys, not scientific studies, and has been seriously challenged. See, e.g., https://www.washingtonpost.com/news/factchecker/wp/2014/12/17/one-in-five-women-in-college-sexually-assaulted-anupdate/?utm_term=.7f211e30541e;
The Bureau of Justice Statistics’ National Crime Victimization Survey reports a much lower rate of sexual assault: 6.1 per 1000 female students from 1995 to 2013, with the rate trending downwards. That study is available at:
https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
5. The National Women’s Law Center has encouraged its supporters to file comments on these draft rules considering that under Draft Rule § 106.45 (b)(3)(vii):
“Colleges and universities would be required to subject survivors to live cross-examination by their rapist’s adviser of choice—often an attorney who is prepared to grill the survivor about the traumatic details of their assault. This person could also potentially be an angry parent or a close friend of the named assailant.”
NWLC Comment Guide re Title IX NPRM, available at:
https://docs.google.com/document/d/1KtkFfZQZS6j8KqZcktleCgGd6lc1acRtgSxSrbIuA3A/edit#
No one doubts that a live Title IX hearing traumatizes. The fair view, however, requires considering that the respondent and the witnesses experience trauma as well such that both require the protection of a lawyer. See generally Claudia Avina & William O’Donohue, Sexual Harassment and PTSD: Is Sexual Harassment Diagnosable Trauma?, 15 J. Traumatic Stress 69 (2002); Ivy K. Ho et al., Sexual Harassment and Posttraumatic Stress Symptoms Among Asian and White Women, 21 J. Aggression, Maltreatment & Trauma 95 (2012); Patrick A. Palmieri & Louise F. Fitzgerald, Confirmatory Factor Analysis of Posttraumatic Stress Symptoms in Sexually Harassed Women, 18 J. Traumatic Stress657 (2005).
6. Kangaroo court is the norm term in print media headlines on the Title IX crisis. For example, consider one of many reports that these Draft Rules are expected to:
“Not only will these rules restore basic due process and fairness to college tribunals, but they also — given how basic the changes are — highlight just how ridiculous university kangaroo courts have become.”
Betsy DeVos Strikes a Blow for the Constitution, David French, National Review, November 16, 2018, available at:
https://www.nationalreview.com/2018/11/betsy-devos-strikes-a-blow-for-the-constitution/
See, also., 'Kangaroo Court': Lawyers Weigh in on Betsy DeVos' Proposed Title IX Policies for Handling Sexual Misconduct on Campus Raychel Lean | National Law Journal, September 12, 2018 available at:
7. Any school or district court believing that the respondents’ interests--in the context of a punitive live hearing that will lead to their expulsion and a lifetime of stigma--are not entitled to full, real, due process or fairness, including gender neutrality, risks splitting the circuits and comes at odds with the enlightened view of the 6th Circuit’s decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) holding that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” In Draft Rule § 106.45 (b)(3)(vii) the Department of Education codifies Baum.
District Courts are citing Baum as the new norm. For example, as recently as January 16, 2019, in Doe v. the University of Mississippi, Case 3:18-cv-00138-DPJ-FKB, (SDMS), the University failed to dismiss Doe’s complaint because he averred gender-based flaws in Mississippi’s Title IX process including not following the safeguards in Baum. The University of Mississippi’s discriminations against Doe ranged the gamut of issues that Doe’s lawyers would have ideally pointed out during and preserved on the record of the live hearing (there was none in this case) under Draft Rule § 106.45 (b)(3)(vii). Importantly, the Mississippi case points out the gender-bias vulnerabilities of every school that redesigned its sexual assault policy under the former DOE guidance. See, Court: Exclusion of evidence, biased training, lack of cross-examination, low evidentiary standard may have violated student’s due process rights. Samantha Harris January 17, 2019, FIRE, available at:
8. Under Draft Rule § 106.45 (b)(3)(vii), the procedural due process prong of the Title IX hearing includes and specifically involves the right of the complainant or the respondent to introduce evidence and, if the evidence is ignored or precluded, to file objections on the record and to have those objections preserved for appeal—be it an appeal within the school or litigation. These objections have a complex, technical nature not obvious to the neophyte or to the non-lawyer. Consider the added complexity of this task because the substantive due process prong, similarly guaranteed during the live Title IX hearing, tends to consist of legally esoteric reasons that substantiate these objections. In this fact pattern, for example, none of what Juan and Jane told the adjudicator met the relevance standard of the objection process. Thus, again, because this objection process best relates to the métier of lawyers, absent lawyers laying this record, respondents lose the due-process-guaranteed chance for their litigation to survive under the most prevalent reverse-Title IX theories, and complainants lose for the same reason under the direct Title IX theory.
Under both reverse-Title IX tests classically expressed in Yusuf v. Vassar College, 35 F.3d 709 (2nd Cir. 1994), “erroneous outcome” where respondents must show that the school’s gender bias and evidence of an inaccurate outcome led to expulsion, and “selective enforcement” where respondents must show that gender led to their conviction (requiring the often elusive evidence that a woman accused of the same violations was treated better than the man), the evidence supporting either theory, and the objection to its exclusion, must be made on the record at the time of the hearing or it can be lost. Lawyers have training and licensing that allows them to do that. Similarly, absent lawyers laying this record, complainants will not be able to hold the school responsible as they too face the tough challenge of overcoming the legal negligence standard that school administrators share with prison wardens—“deliberate indifference.” The Supreme Court first imposed the deliberate indifference test on cases of teacher-student sexual harassment in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998), and on student-student cases a year later in Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Thus, every participant at a live hearing requires apt legal representation to achieve real procedural and substantive due process then and later, should litigation ensue.
9. Juan’s lawyers would have laid a record showing he has no rapist profile. David Lisak’s research provides an example of a matrix to evaluate the likelihood that a respondent actually sexually harassed the complainant. Lisak found that most rapists are men who rape and are not detected because they become adept at identifying victims and testing their boundaries; because they plan and premeditate their attacks; because they groom and isolate victims physically; because they control their impulses to use only as much violence as is instrumental in terrifying and coercing their victims into submission; because they employ psychological weapons like power, control, manipulation, and threats, backed up by physical force, rarely resorting to other weapons; and because these persons deploy alcohol deliberately to incapacitate their victims. See, David Lisak, Understanding the Predatory Nature of Sexual Violence, 14 Sexual Assault Rep. 49, 56 (2011).
On this record, the school documented none of these proclivities against Juan and yet expelled him.
10. See, e.g., Dana Cole, Psychodrama and the Training of Trial Lawyers: Finding the Story, 21 N. ILL. U. L. REV. 1, 29-31 (2001) which demonstrates how a cross-examination built around sympathy for a witness's laudable motivations can be more devastating than the conventional destructive approaches that Title IX activists object to when the complainant faces either the respondent or his “angry parent” during the live hearing (See note 5 supra).
Even if the strategic optimality of being nice to witnesses did not persuade those who fear lawyers at the hearing that this “niceness” will take place, the fact that the other side has lawyers should work as a guarantee of safety. First, any lawyer can be the subject of an ethics complaint from virtually any party. Second, opposing representation is self-enforcing as it creates MAAD, the very tension that ended the Cold War. On these facts Jane’s mother’s letter devastates Jane’s credibility and harms the school’s name. But Jane herself can be protected by her lawyers. The rules of ethics demanding zealous representation for the client prevent that client’s lawyer from allowing her client, as witness, to be abused and vice-versa. On this point the Model Rules of Professional Conduct state:
PREAMBLE: A LAWYER'S RESPONSIBILITIES
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” [Emphasis added]. The rules are available at:
11. The adjudicator is a judge presiding over the hearing which becomes a bench trial. The judge is required to have Title IX facility. This means she has pre-set notions of evidentiary patterns that support or not a complaint or a response. Thus, during the hearing it is evident that lawyers must speak for each side because:
“… a judge's mind may race ahead of the evidence …[making it critical that]… lawyers anticipate and move quickly to distinguish their case from the category of seemingly similar cases to which the judge has assigned it. Rapid response is especially important where, as here, the judge's early factual suppositions are confirmed.”
Paul Holland, Sharing Stories: Narrative Lawyering in Bench Trials, 16 CLINICAL L. REV. 195, 226 (2009). Available at:
http://digitalcommons.law.seattleu.edu/faculty/299
12. One of the best improvements to Title IX in these Draft Rules is at § 106.45(a) which adopts a gender bias neutral view that schools may not favor the victim over the respondent. Today, schools routinely argue as a defense to reverse Title IX lawsuits that they have a legitimate interest in favoring the alleged victim/complainant (who most often is a woman) over the alleged perpetrator/respondent (who most often is a man). Draft Rule § 106.45(a) makes it clear that the schools have no legitimate interest in seeking to change the deplorable history of campus rape (which mostly targets women) by doing away with the laudable history of presumption of innocence for everyone.
The schools’ argument that they can favor the victim/woman is extremely powerful and unfair to respondents. For example, in Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018 WL 1474531, (D. Or. Mar. 26, 2018) Judge Anne Aiken recently presented a thorough discussion of that defense, which Draft Rule § 106.45(a) will do away with. Jude Aiken has no trouble finding that paying tuition creates a due-process protected property interest in respondents’ education:
“The Supreme Court has repeatedly emphasized that "education is perhaps the most important function of state and local governments." Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Both before and after Brown, the Court has expressed "an abiding respect for the vital role of education in a free society[.]" San Antonio lndep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 (1973) (collecting cases).”
Yet even Judge Aiken finds that the school can well get away with gender bias if:
“To the extent that discovery shows that any bias against plaintiff stemmed from a purely "pro-victim" orientation, that bias did not violate Title IX or the Equal Protection Clause. See Doe, 831 F.3d at 57 (noting that what appears to be gender bias may, in fact, be a predisposition to believe sexual assault victims, who are dispropo1iionately women). But another plausible inference from the complaint is that the University was predisposed to believe Roe because she is a woman and disbelieve plaintiff because he is a man. That inference could be supported by, among other things, evidence that when the accused is a woman and/or when the accuser is a man, the University conducts sexual misconduct investigations and adjudications differently than it did in this case.”
And it is very likely the school would get away with this gender bias, absent Draft Rule § 106.45(a), because what Judge Aiken would like to see, an accused woman investigated at that school, hardly if ever happens.
But in either case, under Judge Aiken’s reasoning or under the new reasoning from Draft Rule § 106.45(a), this is another example of the legal minefield that awaits the respondent during a live hearing. Thus, respondents’ due process (which Judge Aiken finds easily) can only be achieved when the school provides a lawyer for the respondent and the complainant. There is no real due process or fairness in a hearing that requires student fluency in these complex legal systems. The notion that students can represent themselves at the hearing has much in common with the notion that patients can operate on themselves so long as they are guaranteed access to the OR.
13. Providing lawyers at the hearing helps the school to fulfill the promises of real due process or fairness it made to hearing participants in the school’s application and other materials. Providing lawyers allows schools to defend against allegations that false advertising or misleading representations induced hearing participants to enroll there.
In addition, schools have an even greater incentive to honor these promises by providing lawyers for students admitted under need-blind, and particularly under full need policies because the expense of securing lawyers’ services is clearly outside the ability of these students’ financial power and the sad reality is that some of these students may end up in a Title IX hearing—something the school knows well at the time it offers them full need admission. Many schools in the US have different levels of need-blind and full-need policies. A list is available at:
https://en.wikipedia.org/wiki/Need-blind_admission
14. School-provided lawyers are meant as a floor, not as a ceiling, to guarantee real due process or fairness promised during the live Title IX hearing under Draft Rule § 106.45 (b)(3)(vii). Providing at least some lawyers’ service to the complainant and to the respondent helps balance the bargaining position of economically disadvantaged participants and safeguards real due process. As Title IX in-school enforcement currently stands, only wealthy participants can go out and hire lawyers. This economic reality both suggests and likely produces disparate disciplinary outcomes depending on the parties’ wealth. This reality violates the promise in Draft Rule § 106.45 (b)(3)(ii) that the school shall provide equal opportunity. Under this proposal the school provides a small share of legal services to both participants and either one is free to accept or to reject that, be it because the party can afford additional legal services or because the party rejects the offer of a lawyer, but both are afforded a real, non illusory chance at due process during the hearing.
15. Perhaps the most recent media explosion of a Title IX scandal with profound brand-name and career harm involves Michigan State University where unspeakable, deplorable conduct, duly covered-up, has not only resulted in the replacement of the school’s president, but also in the replacement of the school’s president’s replacement who is a former governor of the state of Michigan. See, e.g., Jack Stripling, At Michigan State, a Disruptive Presidency That Few Could Muster the Will to End, The Chronicle of Higher Education, January 17, 2019, available at:
16. Under Title IX’s interim measures provisions, schools already have duties to invest and dedicate resources to accommodate both the complainant and the respondent. These include a wide universe of actions including:
“Interim measures are individualized services offered as appropriate to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct, prior to an investigation or while an investigation is pending. Interim measures include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar accommodations.”
UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS, September 2017 Q&A on Campus Sexual Misconduct, Page 2, available at:
https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
To add a duty to provide lawyers meets the same objective as these interim measure provisions because only then do complainants and respondents achieve real due process or fairness at the live hearing.
17. See, e.g,: Baum supra note 7 and compare that with the recalcitrant attitude at the University of Michigan which is under Baum’s jurisdiction:
“Rick Fitzgerald, assistant vice president for Public Affairs said that the University decided to implement the interim policy and will be gathering feedback on the effectiveness of the policy. “We understand that this new element in our policy can be upsetting to those involved in the process," Fitzgerald said. "We believe questioning by students is less traumatic than questioning by attorneys and also removes concerns that a student may not be able to hire an attorney. Also, our process remains an administrative procedure, not a court hearing.”
Samantha Small, Student group creates petition criticizing Title IX court ruling.
Tuesday, January 8, 2019. The Michigan Daily, available at:
https://www.michigandaily.com/section/administration/title-ix-will-put-headline-after
18. Perhaps schools should acknowledge that lawyers do good, and realize that the saying “the first thing to do is to kill all the lawyers” comes from a Shakespeare history play where anarchists try to imagine what their England would guarantee. In a curious foretelling of today’s campus environment they design an England long on beer and swag, but short on lawyers:
JACK CADE. Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,– as king I will be,–
ALL. God save your majesty!
JACK CADE. I thank you, good people:– there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK. The first thing we do, let's kill all the lawyers.
Henry VI, Part 2, Act IV, Scene 2
Even if schools do not develop an awareness of how much lawyers at the live hearing will improve their chances to survive litigation claiming systemic failures of due process or fairness, they should be aware of a large cohort of decisions suggesting as much:
• In Doe v. University of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017) the Court responded to Notre Dame University’s argument that lawyers were not required because its disciplinary process was educational, not punitive, with a due process or fairness requirement, stating that: “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”).
• Similarly, in Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016) the Court ruled that a Title IX hearing is punitive and thus entitled to due process: “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. … If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”).
See also:
Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018);
Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017);
Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016);
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018);
Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss. Sept. 26, 2018);
Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS 157586 (N.D.N.Y. Sept. 16, 2018);
Doe v. Brown Univ., 2018 U.S. Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21, 2018);
Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C. Aug. 14, 2018);
Rowles v. Curators of the Univ. of Miss., No. 2:17-cv-04250 (W.D. Mo. July 16, 2018);
Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018);
Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018);
Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7, 2018);
Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018);
Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS 68364 (S.D. Ohio Apr. 24, 2018);
Roe v. Adams-Gaston, No. 2:17-cv-00945 (S.D. Ohio Apr. 17, 2018);
Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018);
Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018);
Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va. 2018);
Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio Mar. 6, 2018);
Gischel v. Univ. of Cincinnati, 302 F. Supp. 3d 961 (S.D. Ohio 2018);
Powell v. St. Joseph’s Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa. February 16, 2018);
Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J. Jan. 17, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018);
Painter v. Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017);
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20, 2017);
Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017);
Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 27 (N.D. Ohio Sept. 1, 2017);
Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 3d 799, 817 (E.D. Pa. 2017);
Gulyas v. Appalachian St. Univ., 2017 U.S. Dist. LEXIS 137868 (W.D.N.C. Aug. 28, 2017);
Nokes v. Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25, 2017);
Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fl. July 20, 2017);
Tsuruta v. Augustana Univ., No. 4:15-cv-04150 (D.S.D. June 16, 2017); Doe v.
Univ. of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017);
Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017);
Doe v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017);
Doe v. Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017);
Neal v. Colo. St. Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16, 2017);
Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528 (S.D. Fl. Jan. 19, 2017);
Doe v. W. New England Univ., 228 F. Supp. 3d 154 (D. Mass. 2017);
Doe v. Alger, 228 F. Supp. 3d 713 (W.D. Va. 2016);
Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016);
Doe v. Brown Univ., 210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016);
Ritter v. Okla. City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22, 2016);
Doe v. Weill Cornell Med. Coll. of Cornell Univ., No. 1:16-cv-03531 (S.D.N.Y. May 20, 2016);
Doe v. Bd. of Regents of the Univ. Sys. Of Ga., No. 15- cv-04079 (N.D. Ga. April 19, 2016);
Doe v. George Mason Univ., No. 1:15-cv00209 (E.D. Va. Feb. 25, 2016);
Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24, 2016);
Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016);
Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016);
Marshall v. Indiana Univ., 170 F. Supp. 3d 1201 (S.D. Ind. 2016);
Doe v. Pa. St. Univ., No. 4:15-cv-02072 (M.D. Pa. Oct. 28, 2015);
Sterrett v. Cowan, 2015 U.S. Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015);
Doe v. Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept. 16, 2015);
Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md. August 21, 2015);
Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015);
Tanyi v. Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C. July 22, 2015);
Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015);
King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075 (S.D. Ind. August 22, 2014);
Benning v. Corp. of Marlboro Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt. Aug. 5, 2014);
Harris v. St. Joseph’s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13, 2014);
Wells v. Xavier Univ., 7 F. Supp. 3d 746 (S.D. Ohio 2014);
Doe v. Geo. Wash. Univ., No. 1:11-cv-00696 (April 8, 2011).
19. The tremendously damaging history of “Notarios” representing immigrants before the immigration courts provides a model for what happens when non-lawyers represent vulnerable neophytes. The immigration practice also presents a solution outside the scope of this comment: creating a certification scheme for the respondents’ advisors. Immigration law calls this a BIA Accredited Representative (associated with a BIA accredited Organization) (see 8 CFR 292.2). Absent certification, non-legal agents appearing in immigration court routinely ruin lives just as non-legal agents appearing at Title IX hearings routinely ruin respondents’ education. On “Notarios” versus a BIA Representative, see generally:
https://www.americanbar.org/content/dam/aba/administrative/immigration/fightnotariofraud/mdvadc2.pdf
20. Whether having non-attorney agents appear to argue at a live Title IX hearing is unethical or constitutes unauthorized practice of law remains a state-by-state question.
““Practice of law” definitions are established by court rule in fifteen jurisdictions, by statute in sixteen, through case law in twenty-one, and through advisory opinions in three jurisdictions. Many jurisdictions have definitions in more than one resource, such as Pennsylvania, which has practice definitions in case law and advisory opinion.”
See, American Bar Association Standing Committee on Client Protection 2015 Survey of Unlicensed Practice of Law Committees, available at:
For example, the Pennsylvania advisory opinion cited in the ABA’s report seems to be included in the Pennsylvania Bar Association’s manual on what constitutes unauthorized practice of law. This manual does not mention non-attorneys appearing as agents at a live Title IX hearing. The report covers instances where accountants, notaries, divorce mediators, tax consultants and others do engage in the unauthorized practice of law when they appear in front of a governmental agency, on behalf of a client, and engage in the type of legal rule interpretation that an agent engages in during a live Title IX hearing. In Pennsylvania that unethical conduct also comes under statutory definition, 42 Pa. C.S.A. 2524. The manual is available at:
https://www.pabar.org/public/committees/unautpra/Opinions/uplmanual.pdf
21. While this is my personal concern on how to perfect the justice of Title IX’s Draft Rules, the suggestion in this comment meets the Office of Management and Budget’s guidelines on regulatory analysis. First, the need for the school to pay for lawyers for the complainant and the respondent passes cost-benefit analysis because the current alternative—no school paid lawyers—completely obfuscates the very concept that guaranteed the live hearing in the first place, namely, real due process or fairness. Second, the need for the school to pay for lawyers for the complainant and the respondent also passes threshold analysis because absent the school’s allocation of budget for these lawyers the whole rest of the school’s expenditure in Title IX implementation becomes a pointless waste that invites litigation and re-traumatization. See, e.g., Office of Management and Budget, Circular A-4 of September 17, 2003, available at:
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf