Full Testimony on Title IX and the 2020 Regs
Testimony given by Ryan Thompson, Esq.
Testifying to the U.S. Department of Education’s Office for Civil Rights (OCR)
On the 8th day of June 2021:
“My name is Ryan Thompson, and I submit these comments on behalf of myself and my law firm Thompson Esquire PLLC.
For the last year I have compared the 2020 Title IX Regs to an experimental airplane that not only was never test flown, but was never even put through the flight simulator. The current Regs were written with a clear incomprehension as to the realities that schools are confronted with and how these Regs would translate into real life.
Though likely never intended to do so, the Regs-writers created an odd bifurcated conduct system at most higher ed institutions where sexual violence or harassment between students on campus must be handled differently from sexual violence or harassment between students across the street at a house party, for example.
The Regs, while rightfully mandating equal treatment and instilling due process protections for both parties – something that many of us practitioners had been engaged in for years as best practices – the overly prescriptive and often arbitrary rules have created quasi courtrooms where gamesmanship and attorney tactics can overcome actual evidence.
As a former Title IX Coordinator, and now an attorney engaged almost exclusively in Title IX and Civil Rights work with schools, I have seen this gamesmanship up close. As a Hearing Officer, I have actually had attorneys tell me that their plan is to ask a party or witness a question that they will refuse to answer so that, as a result of the Regs, all of their previous statements and evidence will then be eradicated from the record.
These procedural oddities, like OCR’s all-or-nothing cross examination mandate and the treatment of nonresponsive witness testimony, do not exist in any modern legal system that I am aware of, created as if an experiment is some law school clinic. They take us further away from assessing these cases on the actual facts and evidence, and they make these lengthy Title IX adjudications into legal contests where money and attorney strategy can trump the truth.
Already we have seen the time it takes these cases to be resolved become lengthier, and this time continues to grow, as delay tactics can make smart strategy under the current Regs, because of their prohibitions against many interim actions and temporary degree or transcript holds.
While I believe some level of cross-examination, or some procedural equivalent, is wise to ensure fundamental fairness, I wonder if this mechanism can be built into robust investigation interviews rather than live hearings.
If, however, we do want to continue to operate this live hearing model, I implore you to remove the procedural oddities mentioned previously, as well as consider the following:
• As a Hearing Officer, I don’t need to approve every single relevant question. Just put the onus on us to step in and stop a non-relevant question.
• And the strict rules as to what constitutes non-relevant will need to be reexamined as well, including whether a party may waive certain exclusions related to their own privacy.
• Depending on how the cross-examination exclusionary rules are redesigned, we will also need to revisit the consequence of when a witness fails to appear for the hearing, and whether who called that witness is material.
• We just want to get as much relevant evidence and as many helpful witnesses to participate in the process as possible, not play potentially life-altering strategic mind-games with our students.
• We also don't need to force hearings upon parties when neither party wants to engage in one, but instead prefer some other form of administrative adjudication. Nor do we need hearings for minor violations when sanctions will be less serious.
• I also see no reason why we must treat employees the same as students, prohibiting institutions from compelling their own employees to participate or testify as witnesses. We want to encourage the gathering and consideration of evidence, not find ways to exclude it.
• And finally, I think I speak for many in this field, especially those seasoned student conduct hearing officers out there, when I say that we must ensure that the remote hearing options and integration of Zoom for these adjudications remain available to use post-pandemic. Simply put, we are finding these remote hearings are working significantly better from an administration perspective, and, most importantly, are less traumatic and difficult to endure for both parties and the witnesses.”