Patricia Hamill and Lorie Dakessian File Comments to Proposed Title IX Regulations on Behalf of National Coalition of Practicing Lawyers and Professors

In response to the US Department of Education’s proposed changes to its Title IX regulations governing sexual harassment and assault claims brought at educational institutions, Conrad O’Brien partners Patricia Hamill and Lorie Dakessian of the Firm’s Title IX, Due Process and Campus Discipline practice group filed comments on January 28, 2019 ["Comments of Concerned Lawyers and Educators in Support of Fundamental Fairness for All Parties in Title IX Grievance Proceedings"] on behalf of a national coalition of 40 practicing lawyers and professors.

Working in conjunction with Philadelphia criminal defense and civil rights lawyer David Rudofsky, senior fellow at the University of Pennsylvania Law School and partner at Kairys, Rudovsky, Messing, Feinberg & Lin, the Coalition led by Hamill, Dakessian and Rudofsky (calling itself “Concerned Lawyers and Educators”) filed comments for the purpose of:

• emphasizing that the Department’s proposed reforms are designed to provide fundamental fairness to both parties in Title IX proceedings, and are consistent with court opinions and basic due process principles;
• seeking clarification of certain points (including the definition of sexual harassment and the scope of conduct within educational programs or activities) to demonstrate that the Department is not unduly restricting Title IX’s jurisdiction;
• supporting the proposed procedural protections - Including the right to a live hearing and meaningful cross examination - and, in some cases, recommending additional safeguards;
• recommending adoption of a uniform “clear and convincing” evidentiary standard or, at least, a more precise definition of preponderance; and
• recommending more transparency as to how university officials are trained.

The Coalition specifically recommends the following changes to the proposed regulations to increase the fairness and due process in Title IX investigations and proceedings, and more closely align them with existing case law:

1. Adopt “clear and convincing evidence” as the standard of evidence for all Title IX cases (and not permit schools to establish other standards such as “preponderance of the evidence”).

2. Require all proceedings and investigations to proceed from a presumption of the respondent’s innocence, and avoid presumptions of truth of the factual accounts of either complainants or respondents.

3. Expand the definition of sexual harassment that triggers Title IX protections to include a single incident of sexual assault.

4. Clarify the scope of “education program or activity” in determining the applicability of Title IX so that students have prior notice of the school’s jurisdiction. (For example, the extent to which “off campus” or extracurricular activities are subject to Title IX’s protections.)

5. Require educational institutions to provide reasons for any emergency removal of a respondent from school.

In addition, the Coalition’s comments specifically state its support for:

1. The regulations’ endorsement of a range of dispute resolution procedures to serve as options for complainants seeking an alternative to a formal, adversarial Title IX proceeding.

2. The principle that a school’s improper conduct in a Title IX proceeding can constitute gender discrimination against the respondent as well as the complainant.

3. The rule that schools can only initiate a formal Title IX proceeding upon the filing of a formal complaint, and the requirement to provide “supportive measures” to the parties if a formal complaint is not filed.

4. The rule that Title IX grievances should be resolved in a live hearing that permits cross examination of parties and witnesses, and that the statements of parties or witnesses who refuse cross examination should not be relied upon in any investigation or proceeding (subject to self-incrimination protections).

5. A prohibition of Title IX grievance investigators also serving as decision makers or adjudicators.

Hamill released a separate statement that highlights her personal story and politics, and emphasizes that her practical experience handling more than 100 Title IX proceedings gives her a unique perspective on the shortcomings of the current Title IX regulatory regime and the need for changes:

“I am a feminist, married to a woman, graduate of a women’s college, mother of two teenage sons and a college age daughter, and a liberal Democrat. I am also a lawyer who in the past five years has represented more than 100 accused students around the country, almost all young men, in college Title IX/sexual misconduct proceedings and in litigation growing out of those proceedings. . . I file this separate comment to highlight some particularly important recommendations, and to provide representative examples of scenarios that illustrate why reforms are so sorely needed. “