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Federal Appeals Court Defines 'Fairness' in Title IX Policies

June 2, 2020
 
 

In what’s been called a “pathbreaking” and “profound” panel ruling, judges from the United States Court of Appeals for the Third Circuit on May 29 held that “fairness” as defined in colleges’ processes for investigating and adjudicating reports of sexual harassment means that students are afforded a live hearing and cross-examination process.

The three-judge panel concluded that if a college’s policy under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, promises a “fair” process to its students, as most do, the college must allow them to participate in “some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.”

This applies even if the student attends a private college, where constitutional due process guarantees are not applicable, according to the panel ruling, written by Judge David Porter. Requiring colleges to engage in such a process has been one of the main critiques of the new Title IX regulations issued by the U.S. Department of Education last month.

The lawsuit reviewed by the panel was filed in U.S. District Court for the Eastern District of Pennsylvania against the University of the Sciences, a private institution in Philadelphia, by a male student, John Doe, who claims the college discriminated against him because of his sex. USciences found Doe responsible in 2018 for the sexual assault of two female students through a single-investigator model and expelled him. In one of the incidents, both Doe and the female student involved were intoxicated, and USciences decided only to hold Doe accountable for initiating their sexual activity despite that they were comparably drunk, according to the lawsuit.

Doe also claims that the university breached its contract with him as it’s stated in the USciences student handbook. The handbook says the college will provide a process that is “adequate, reliable, impartial, prompt, fair and equitable,” Porter wrote. Because the handbook does not define “fairness,” the court interpreted it based on previous Pennsylvania court opinions, which “determined that fairness includes the chance to cross-examine witnesses and the ability to participate in a live, adversarial hearing,” Porter wrote. As a result, the panel reversed the district court’s decision to dismiss the lawsuit against USciences and ordered the lower court to proceed with the lawsuit and apply its new opinion.

While other federal appeals courts, such as the Sixth Circuit in the Midwestern U.S. and First Circuit in the Northeast, have ruled that public universities must provide a live hearing and cross-examination to students involved in “he said/she said” cases because the institutions are subject to the due process clause, Friday’s Third Circuit ruling applies the same standard to private institutions in parts of Pennsylvania, New Jersey and Delaware, said Jake Sapp, a Title IX legal researcher for the Stetson Center for Excellence in Higher Education Law and Policy. Peter Lake, director of the center, said he could see other circuits quickly following suit.

“If you’re in Pennsylvania, you’ve got to pull up every employee and student handbook and rewrite it,” Lake said. “This is a profound assertion of federal authority.”

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