Hon. Jane Cutler Greenspan (Ret.), JAMS neutral and former justice of the Supreme Court of Pennsylvania, recently convened a roundtable discussion with luminaries in the Title IX field to discuss their observations and nascent trends. As part of this discussion, the panel identified issues and provided solutions for higher education leadership to better serve their institutions and parties in these proceedings.
External Versus Internal Adjudicators
Justice Greenspan: After retiring from the Supreme Court of Pennsylvania in 2010, I began serving as a neutral adjudicator shortly after the “Dear Colleague” letter of 2011 changed the way schools look at Title IX. Since then, I have seen schools incorporate rules and procedures utilizing either external adjudicators or internal adjudicators, with some changing course along the way.
Justice Greenspan: What are the benefits and drawbacks of each model?
Mike Baughman: Some schools have, I think appropriately, given themselves the option to use either internal or external adjudicators, depending on the nature of the allegations in a particular case. The size and resources of the school may also influence whether or not to utilize an external resource to resolve cases. Some larger institutions may have more individuals available with the appropriate background to hear cases. Conversely, where members of the community are well known to each other, it may be more difficult to have an internal person deciding these difficult cases.
Will Miller: The benefits of using an external adjudicator include lessening the risk that one or the other party will raise bias or conflict of interest-related concerns about the process as well as an increased ability to manage complex evidentiary issues. The benefits of using an internal adjudicator include a greater familiarity with institutional values and process and an ability on the part of the institution to select and focus training on the internal individual(s) serving as the adjudicator(s). I find it helpful for school policies to allow for this determination to be made on a case by case basis.
Patricia Hamill: Building on Will’s point, one way to have possibly the best of both worlds — perceived independence of an outside adjudicator and knowledge of the institution/focused training for internal decision makers — is to have a panel approach that includes one outside adjudicator and two internal adjudicators. I have seen that work quite well. Regardless of the model chosen, schools need to have a method of ensuring that there is transparency for decision-makers regarding sanctions that have been meted out in similar cases in order to eliminate arbitrariness that could arise if there is no such transparency.
Justice Greenspan: It has been said by some school officials that Title IX matters are “internal governance issues” and therefore they should be handled by internal resources like other matters of student discipline. Should schools treat allegations of sexual assault and harassment under Title IX differently than other student discipline issues? If so, why?
Patricia Hamill: Sexual assault issues in particular are unique; require a level of skill to adjudicate and to evaluate evidence, including witness testimony; are not within the normal wheelhouse of a college administrator or faculty member; and cannot be learned with a limited training program. These are definitely not internal governance issues, and I don’t think courts see them that way either, as courts have tended to be more willing to wade in to analyze a school’s Title IX’s processes and procedures than they typically would with a case involving, for instance, academic dishonesty.
Will Miller: The simple answer from a legal perspective is that disciplinary matters involving sexual harassment – and in particular, sexual assault – warrant a different disciplinary process than other matters of student discipline because they are more heavily regulated. Above and beyond the higher degree of regulation, however, I think a more robust attention to appropriate process is warranted in such matters given the increased sensitivity of the subject matter of such cases, the often complex evidentiary issues involved and the often heightened stakes for the parties.
Mike Baughman: Title IX cases are often more complex and difficult than typical student discipline issues, and require special attention and care. Therefore, schools often appropriately seek assistance from outside experts in these matters. It is critical that a school’s Title IX policy – and the procedures it puts in place to resolve complaints – reflects each individual school’s values and culture. The decision in any case – whether decided by internal or external resources – is ultimately the school’s decision, so the school’s process must have in place ways to ensure that the institution’s values are reflected in each outcome.
Adjudicative Versus Investigative Resolution Models
Justice Greenspan: In your experience, what are the most notable benefits and shortcomings of each?
Will Miller: I think the benefits of the adjudicative model are having a fresh set of eyes on the totality of the evidence after it has been gathered and the opportunity for parties to hear and respond in real time to the statements of the other party and of witnesses. Also, the hearing model can enhance the ability of the fact-finder to gauge the non-verbal and verbal reactions of the parties as evidence is presented and thus to assess credibility. On the other hand, with respect to the investigative model, there is a value in having the investigators as fact-finders making credibility determinations because they typically spend more time considering and gathering the evidence and get the parties’ initial responses and reactions to questions and evidence before they have heard or reviewed much of the evidence in the case (e.g., complete account of the other party, witness testimony, documentary evidence).
Patricia Hamill: So much depends on the quality of the players regardless of the model, so I have been equally dissatisfied and satisfied with both systems depending on how professionally I feel a process has been executed.
I personally prefer a hearing model if the accused student has an advisor. That way, the accused student gets to hear in real time the witnesses against him (or her), and I think an adjudicative model has the best chance of getting at the truth/reaching a just result, assuming that the decision makers are skilled and discerning. At the same time, I acknowledge that the adjudicative model can put greater pressure on both parties and is likely more anxiety-provoking than a one-on-one interview. Adjudicative models can also put a student who has slower processing at a disadvantage — it’s much harder when one is anxious to think clearly or process information in real time. Students should never be on panels regardless.
My concern with the investigative model, where there is no hearing at the end of the process, is that it lacks the most transparency. The accused student is “at the mercy” of the investigator in terms of what questions are asked of the other party and witnesses, how those questions and answers are recorded, etc. There is also no real ability to cross-examine the accuser, even if only indirectly through a hearing panel. That being said, a truly skilled investigator can sometimes be very effective at both investigating and recording the results of that investigation.
Mike Baughman: There is no one-size-fits-all approach, and schools have used different forms of “adjudicative” models and “investigative” models, including hybrids of the two. I agree with Will’s reactions on the advantages of the adjudicative model, which encompasses a formal hearing. I also agree with Patricia that the adjudicative model has the advantage of allowing parties to observe all aspects of the hearing. Some form of formal hearing may be a safer approach for public schools, to ensure they are in compliance with constitutional due process requirements (some recent decisions have suggested the importance of some form of cross examination and the opportunity to judge credibility through the fact finder’s personal observation of the parties and witnesses). A significant disadvantage of the adjudicative model is that it often takes longer and involves duplication of effort – where an investigator first develops the record and interviews the parties, to only then have the adjudicative body interview the same people for a second time. An adjudicative hearing also can be very stressful to students involved in the process. In many situations, the best approach is a hybrid, where the investigator collects the evidence, makes credibility assessments and makes a recommended finding, with a more limited and less formal hearing to confirm or reject the findings.
For a full version of this roundtable, visit the JAMS Solutions for Higher Education at https://www.jamsadr.com/solutions.
About the Moderator
Justice Jane Greenspan (Neutral, JAMS)
Hon. Jane Greenspan (Ret.) is a JAMS neutral, based in Philadelphia. She routinely serves as an arbitrator and mediator in complex commercial, labor, financial and business disputes, as well as an adjudicator in a number of college and university Title IX cases. She can be reached at jgreenspan@jamsadr.com.
About the Panel
Michael Baughman (Partner, Pepper Hamilton)
As Chair of the firm’s Higher Education Practice Group, Michael Baughman represents colleges, universities, and other educational institutions in providing counseling, litigation, and investigative services for the unique challenges that face institutions of higher learning. He counseled many schools on their Title IX policies and procedures and represents Colleges and Universities in Title IX litigation around the country, as well as in investigations by the Department of Education’s Office for Civil Rights.
Patricia Hamill (Partner, Conrad O’Brien)
Patricia Hamill is a partner at Conrad O’Brien who has extensive experience successfully representing clients nationwide spanning a breadth of matters, including complex commercial litigation, Title IX litigation, and student disciplinary matters. She was recently recognized as the “2018 Pennsylvania Power Player” by The Legal Intelligencer for her work related to Title IX. In addition to her nationwide Title IX practice, she is a frequent speaker on Title IX litigation and related issues to audiences of higher education Title IX coordinators, advocacy groups, and attorneys.
Will Miller (Associate General Counsel, New York University)
Will Miller is an Associate General Counsel in the Office of General Counsel at New York University and specializes in litigation and student affairs. He routinely advises on general policy and individual investigations and hearings involving Title IX and sexual misconduct.
