While Title IX matters have always been complex, the ever-changing legal landscape has made them even more so today. Increased scrutiny since the Education Department’s Office for Civil Rights issued guidance in 2011 has also increased the importance of the hearing panels, which decide cases.
I’ve worked in higher-education law for more than 16 years, including eight as sole legal counsel for a midsize campus, and one of the hardest jobs is appointing members for the hearing panels. Here are the issues that colleges should consider when undertaking this important task.
Colleges continue to look for ways to make their Title IX hearings fairer. Here’s how colleges are rethinking the boards that often decide sexual-assault cases.
Willingness to serve. Serving on a sexual-misconduct hearing panel is much more intense, complicated, and difficult than it might appear from the outside. Emotions run high, and the panels must listen to evidence that involves detailed accounts of sexual encounters. Panel members need to be willing and able to dedicate the necessary time and energy as well as willing to subject themselves to emotional discomfort.
Recently I interviewed a hearing-panel member in preparation for litigation. When I asked her why she had agreed to serve, she said that she was concerned that men on campus were raping women on campus without accountability, and that she thought she could make a difference. Once she started serving on the panel, however, her initial perception changed greatly. She quickly understood that these cases were not as black-and-white as she had anticipated. She also recognized that she had put herself squarely in the line of fire if litigation ensued.
She questioned if she should have volunteered to serve at all given some of the gut-wrenching decisions that she had to make, affecting the lives of members of her campus community. I like to tell folks who serve and struggle with the emotional aspect of this to remember that they did not create the facts, but that it’s virtually impossible to sit in on these matters and not be feel an impact.
Lack of bias. Ensuring that committee members do not have an actual or perceived bias is paramount. This is not only because of the mandates from the Office for Civil Rights and related laws and regulations, but also because it is the fair and just thing to do.
Actual bias is easier to spot. For example, if an athlete is involved, do not put his or her coach on the hearing panel. Perceived bias can be tricky. This is evaluated from the perception of the parties involved in the hearing, not the panel member. A panel member may be able to hear a case and have no true bias toward a party; however, past interactions or his or her campus position may create a perceived bias.
An overly aggressive panel member can be problematic, as can one who is afraid to ask difficult questions.
Faculty and staff members who gravitate toward serving on these panels (and who have the most knowledge about sexual misconduct) are often in the area of women’s studies and advocacy. While this may not pose an issue for that member in that he or she can still effectively listen to, evaluate, and weigh the evidence presented, it may raise a red flag for one party or another in a proceeding.
Likewise, if a member of the campus has been particularly vocal on either side of the Title IX issue, a perception of bias may result. Every case should be evaluated separately in forming a panel, and each panel member should be trained in recognizing and noting any potential bias.
Good bedside manner. The parties involved in a hearing are members of the campus community, not witnesses in a court of law. The only way to ensure the integrity of the Title IX process is to ensure that all parties involved are treated with dignity and respect. That’s why bedside manner, which encapsulates demeanor, tone, professionalism, and personality, must be considered when evaluating an appropriate fit for a hearing-panel member. An overly aggressive panel member can be problematic, as can one who is afraid to ask difficult questions. If it becomes apparent that a member is not a good fit, do not be afraid to make a change.
Confidentiality. An individual’s ability to stay completely mum about these matters is crucial. The campus gossip is absolutely not a good fit for a hearing panel. That might seem obvious, but leaks can easily happen, creating caustic situations. One case I was involved in resulted in litigation simply because a panel member shared some details about the hearing with a friend who in turn shared it with a friend until the telephone chain ended with someone close to the complainant. The complainant had not been happy with the results of the hearing but had accepted them. When she learned through the grapevine that a panel member thought she was a liar, she called a lawyer.
Diversity. Bringing various perspectives about campus life to the table in a hearing can be invaluable in evaluating evidence. Members of campus-safety offices will be well equipped to evaluate and weigh evidence, but they may not understand, for example, Greek life. Human-resources professionals will very likely have experience and insight into investigating workplace issues, but they may not have an understanding of the campus climate as it relates to students. Be sure to have representatives from various areas of campus on your panel. Dig deeper than the expected “faculty representative.”
A college cannot overlook the important work of a sexual-assault hearing panel and the service to the campus that its members provide. The role isn’t for everyone, but colleges that put in the effort to find and train the right people will be rewarded with a fair and effective panel.
Courtney Bullard is a lawyer specializing in Title IX compliance in Chattanooga, Tenn., and a former associate general counsel for the University of Tennessee at Chattanooga.
