Conrad O'Brien's Title IX, Due Process & Campus Discipline group submitted a comment to the Department of Education's Office for Civil Rights (OCR) as part of OCR's Title IX Public Hearing (Ensuring Fair and Reliable Campus Disciplinary Proceedings In Cases Involving Alleged Sexual Misconduct).
The team's written comment urged OCR not to rollback the significant procedural protections put in place by the 2020 Title IX regulations, as those are a crucial effort to align Title IX regulatory requirements with basic principles of justice, with court precedent requiring fair procedures for people accused of serious misconduct, and with Title IX’s proscription of all gender discrimination. As recognized in the 2020 regulations, a school’s treatment of either a complainant or a respondent in connection with a sexual harassment complaint may constitute discrimination on the basis of sex. The comment explains: "We believe both complainants and respondents have a right to be heard. Neither has a right to be automatically believed. A society dedicated to equal justice under law cannot function if we abandon basic fairness and due process principles in reaction to particular types of cases."
Notably, the Title IX team advocates that certain key procedural protections that were established under the 2020 Title IX regulations must still be preserved. These key protections, that are required under our nation’s system of law for fair and reliable determinations, include:
- Notice
- Impartial decisionmakers
- Thorough and fair investigations where both exculpatory and inculpatory evidence is gathered and considered
- A meaningful opportunity to be heard (including the opportunity for the parties to present their positions and confront testimony against them in a live hearing before decisionmakers)
- A presumption that the respondent is not responsible unless the applicable standard of proof is met
- Decisions based on the facts of the particular case
Written comments were accepted as part of the hearings conducted by the Department of Education’s efforts pursuant to President Biden’s Executive Order calling for a comprehensive review of the current Title IX regulations. Patricia Hamill also testified live at this hearing.