Berger-Sweeney Response To Title IX Not Sufficient

Daniel Nesbitt ’22
Staff Writer
On Jan. 30, President Berger-Sweeney submitted the College’s formal response to the Department of Education’s (DoED) proposed Title IX changes. While the response raises some valid concerns, its interpretation of the proposed provisions is quite myopic. In particular, the College tries to dilute the increased due process protections that Title IX so desperately needs. The DoED’s new guidelines are a positive change that restores procedural fairness, protecting the rights of both complainants and accused students.
Critics of the Obama Administration’s Title IX guidance rightly point out that its approach to campus sexual assault was fundamentally flawed. These flaws have been examined by individuals and groups on both ends of the political spectrum, with critiques appearing in The Washington Post, The New York Times, and numerous law journals. Furthermore, according to the Foundation for Individual Rights in Education (FIRE), there have been more than 100 federal court cases, in addition to state court cases, that have raised concerns about the lack of due process in campus disciplinary proceedings. As one judge wrote in Doe v. Regents of the University of California: “It is ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy.” 
The College’s paramount concern is the requirement “that institutions must provide live hearings with cross-examinations,” arguing that this provision “will deter both the reporting of such discrimination and misconduct and the willingness of students to move forward with investigations.” That a provision might deter reporting of misconduct cannot be the only consideration of whether a policy is appropriate. For example, students would undoubtably feel more comfortable reporting misconduct if the school presumed guilt against the accused, however this would be contrary and incompatible with due process and principles of fundamental fairness. Campus proceedings involving sexual misconduct often hinge on credibility and competing testimony; cross-examination is essential to ensure due process and fairness in these cases. In fact, the Sixth Circuit Court of Appeals recently held in Doe v. Baum that failure to allow cross-examination violates students’ due process rights. 
The College also objects to the cross-examination provision on the grounds that “it would set up a quasi-judicial proceeding for a disciplinary matter, and it incorrectly presumes that live hearings and cross-examinations are necessary to determine whether discrimination or misconduct has occurred.” While the proposed process certainly looks “quasi-judicial,” it should be quasi-judicial, as it is a determination of serious allegations with potentially life-altering consequences. The very same procedural protections that help courts achieve accurate outcomes would also ensure accuracy in campus proceedings. That these procedural safeguards are also used in courts is no justification to resist them as procedures should be tailored to reach accurate findings of the truth. 
Continuing, Trinity defends “[its] process, which employs independent investigators and involves written statements from all parties.” The single-investigator model that Trinity uses for cases involving sexual misconduct is significantly flawed, as it maximizes the opportunity for one individual’s error or unconscious bias to be a determining factor in a case. Multiple fact-finders are needed, otherwise no one will catch these potential errors or biases. The single-investigator model leads to unfair outcomes for both victims of misconduct as well as accused students. 
Within the provisions concerning cross-examinations, there is also a provision that the cross-examinations “must be conducted by the party’s advisor of choice.” “The potential introduction of attorneys as advisors in live hearings,” the College argues, “would further deter reporting and investigations and create inequities between students with disparate financial resources…those without [the means] would depend upon the College’s ability to appoint an advisor (a difficult task for a small college with limited resources).” The burden of proof to prove the accused student guilty is on Trinity, not the complainant. While the College is small, it surely has more money and resources than an accused student. In addition, Trinity, according to U.S. News & World Report, has the 4th highest tuition in the nation at $56,910 annually. Meanwhile, the College’s budget stands at $136.9 million for the 2019 fiscal year. Could Trinity really not find a way to allocate the resources to provide students with counsel?
These are just some of Trinity’s objections to the DoED’s proposed changes, but the remaining objections shall be discussed in a later piece. The DoED’s new provisions are an amelioration for the lack of due process protections in campus proceedings involving sexual misconduct. Protecting the rights of all parties involved and providing support for students affected by sexual misconduct are not mutually exclusive. Adopting the new Title IX provisions is a step in the right direction for Trinity.