Hiring and Training Competent Title IX Hearing Officers

Abstract

American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply … rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, and in real time.”

Even well-meaning and diligent university faculty and staff members cannot serve as competent hearing officers under the revised regulations, at least not without robust training that campus officials will have trouble providing. Under the prior regime, faculty and staff hearing officers often required that parties submit written questions, which the officer would then consider asking of witnesses. Further, many universities prohibited parties’ advisors from speaking at hearings, other than by whispering to their clients, who might then propose a question suggested by counsel. These practices are forbidden under the revised regulation. A marketing or biology professor who muddled through under the old system—carefully considering questions scribbled by college students—will encounter an entirely new challenge when asked to rule in real time upon the propriety of questions asked by skilled lawyers. Necessary training would be expensive.

This Article proposes that colleges and universities solve this problem by hiring external hearing officers. At the same time, institutions can retain autonomy over internal discipline decisions by using faculty and staff as jurors who decide the merits of a case after a trained professional has presided at a hearing.

Keywords: Education law, Title IX, universities, colleges, higher education, rape shield, legal privileges, campus hearings, hearing officers, training, students, student conduct, student discipline