Imagine formally accusing your university’s star quarterback of rape. You meet with the Title IX investigator to recount what happened, and later receive a copy of the quarterback’s statement. You are outraged but feel confident that the panel will know you are telling the truth. But then you find out your college doesn’t allow live hearings. Instead, the investigator, the same one you saw at the football game last Saturday, will decide what happened. Nor do you have any meaningful ability to challenge the player’s story. Sure, you can propose questions, but, because nothing is recorded, you won’t know whether they are asked or answered. Midway through your football team’s undefeated season, the quarterback is found not responsible of raping you.
Such a scenario could happen under the new Title IX regulations being proposed by the Biden administration. They remove the requirement, put in place under President Trump, for an adjudicatory hearing with live witnesses and direct questioning. (Importantly, the Trump-era rules required parties to question each other through an adviser.) They also explicitly greenlight the single-investigator model, which allows the same person to gather evidence and determine what happened. These changes strip away procedural protections that benefit both victims and the accused. By making the process less fair, they also undermine its legitimacy.
The Biden administration contends that one-on-one meetings between witnesses and the decision maker are sufficient for assessing credibility. But such conferences are woefully inadequate. I have advised both complainants and accused students in Title IX hearings, and there is rarely proof in the form of security footage or text messages. Instead, it is small details that make the difference in determining what really happened, the kind that won’t even register to someone who wasn’t there.
Granted, the Biden regulations let parties propose questions, but unless the witness is reading verbatim from a prepared statement, how can accused or accusing parties know what to ask? Follow-up questions are a hollow right. How can you decide what more to query if you didn’t hear the initial answer?
Biden’s proposal also ignores the importance of allowing a party to challenge claims through follow-up testimony. Although the students I advise sometimes ask a witness questions directly, they keep that to a minimum to avoid seeming aggressive. Instead, they challenge the other side with their own words or other evidence. Knowing that both parties are present and able to respond probably has the added benefit of making everyone more likely to tell the truth.
Just as problematic is that the new regulations allow the same person to both investigate and adjudicate what happened. The single-investigator model ignores the reality of confirmation bias, meaning the tendency for people to seek or interpret evidence in a manner that is partial to an existing belief, expectation, or hypothesis. Confirmation bias has been shown to be strikingly robust across many domains.
Comments on the new proposed Title IX regulations close today at 11:59 p.m. Let the Biden administration know that both parties benefit from live hearings.
The Biden administration contends that bias won’t be a problem, because investigators are not prosecutors seeking to prove a violation; they are simply gathering and reviewing evidence to ensure their college is free of unlawful sex discrimination. But that sounds a lot like what police officers do, and researchers have shown how confirmation bias can infect criminal investigations. For instance, the psychologists Karl Ask, Anna Rebelius, and Pär Anders Granhag have found that experienced investigators judged witness statements differently depending on whether the statement was consistent with their initial theories.
As a former Title IX investigator told me, the single-investigator model was “the absolute worst” for student investigations and hearings: “I don’t see how they could not be biased,” she said. “You have students who are very polite, you have students who are always late, … you’ll be interviewing friends who will tell you things that are totally irrelevant. There is so much information that comes through the investigation that is potentially inadmissible, and I do think it creates a problem when that same investigator is also determining responsibility.”
Efficiency and the desire to protect victims from uncomfortable situations seem to be largely driving Biden’s proposed changes, but it isn’t just the accused who benefit from robust process. That’s why the American Bar Association’s 2017 Criminal Justice Section Task Force on Campus Due Process and Victim Protection recommended against the single-investigator model and for live adjudicatory hearings with cross-examination through advisers. Those on the task force who devoted their careers to advocating for victims and survivors knew from experience that covering up the sexual misconduct of the star quarterback is a very real possibility.
If you’re reading this on Monday, September 12, it’s not too late to stop this injustice. Comments on the new proposed Title IX regulations close today at 11:59 p.m. Let the Biden administration know that both parties benefit from live adjudicatory hearings. Tell them in no uncertain terms that the single-investigatory model is wrong, not just for the accused but for victims too.
