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New Title IX Regulations Require Schools to Allow Expert Witnesses in Disciplinary Proceedings

US-DOE-sealThe new Title IX regulations that were released yesterday impose detailed requirements schools must follow to address complaints of sexual harassment, including sexual assault. Until now, under Title IX schools were left to their own devices to develop grievance procedures, the only regulatory requirement was that those procedures be “prompt and equitable.” In recent years schools’ processes for assessing complaints of sexual harassment have been the source of increasing litigation, as students who feel the disciplinary process was unfair sue their schools for violations of Title IX or state law.

As we have previously discussed on this blog, a number of courts have wrestled with what makes a school disciplinary procedure fair enough (generally addressing this question under state laws that require something like fundamental fairness in these processes.) Some courts have noted that the impairment of a student’s right to present evidence is a factor that could lead a school process to be found fundamentally unfair. In my experience, representing students in Title IX cases across the country, school policies have varied widely in terms of what evidence they will permit. While some schools have allowed students to present expert witness testimony or reports, others exclude such evidence. Some schools allow their investigators to seek out information from their own “expert” witnesses (often members of the school’s health services center), while others restrict investigations to fact evidence. Some schools allow students to submit the results of polygraph tests, others exclude that evidence.

The new regulations impose uniform requirements across schools, and expand the categories of evidence students may submit for consideration. The regulations require schools to allow expert witness testimony. They prohibit schools from restricting the ability of parties to “gather and present relevant evidence.” The regulations also prohibit schools from restricting parties from discussing the allegations—a historic feature of school policies that prevented parties from identifying witnesses who might have relevant information.

While the regulations require schools to accept “relevant evidence,” they do not provide guidance to schools as to how make the judgment as to what evidence is relevant. As my colleague discussed with respect to “relevant” cross-examination questions, determining relevance is a difficult enough job for trained lawyers and judges; it is impossible to see how school administrators will go about making those decisions in a reliable and uniform way. It seems inevitable that disagreements—and potentially litigation—will arise over decisions to exclude or include certain pieces of evidence.

The Department of Education’s explicit requirement that schools allow expert witnesses recognizes that issues at play in sexual misconduct cases are often beyond the knowledge of lay people. In my experience, campus sexual misconduct cases often require the decision maker to understand the effects of alcohol, prescription drugs, and recreational drugs on people’s abilities to give consent, or how someone under the influence of mind-altering substances might appear to people interacting with him/her. Toxicologists are also often called in to Title IX proceedings to explain how alcohol affects people’s memories, and to explain alcohol-induced blackouts. Forensic psychologists are used to explain how trauma does or does not impact memory formation. Polygraph experts may be relevant to interpreting the results of a polygraph test, and forensic sexual assault nurse examiners are often used to explain what a medical exam of the complainant does or does not demonstrate. While expert witnesses can be enormously helpful to a party’s case, determining which experts are trustworthy and providing sound information is not easy. The regulations do not provide any guidance as to how schools should determine whether a proposed expert witness is actually an expert in the field—there is nothing like the Daubert standard courts use to assess whether the expert’s opinion will actually be relevant. Where anyone can claim to be an “expert” on a given matter, and there are no guidelines for how school adjudicators are supposed to assess credentials and separate the junk science from actual scientific anlyses, any school decision to allow or not allow a specific expert seems ripe for challenge from the party adversely affected by it.

The allowance of expert witnesses also exacerbates the already-existing inequity between students with substantial financial resources and those without. Already, in my experience, students, employees, and faculty who can afford to hire experienced attorneys to assist them with Title IX cases fare better than those who cannot. The new requirement that parties be allowed to cross-examine each other will heighten this inequality; if an experienced attorney was a benefit even when attorneys were not supposed to actively participate in hearings, it will be increasingly beneficial when they can examine witnesses. Students who can afford to hire expert witnesses to analyze evidence and provide testimony will only enhance the strength of their cases. For a process that is required to be “equitable,” the increasing professionalization of the grievance procedures seems destined to lead to a greater chasm between those students who have financial resources to put towards their case, and those who do not. While expert witnesses are undeniably helpful to parties who use them and to the decision maker, only some students will benefit from the regulation’s requirement that they be allowed.

This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.

If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.

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