Zisser: Colleges and universities can make the Title IX process less traumatic, if they choose to

The U.S. Department of Education finalized its new Title IX regulations in April, undoing much of the damage the Trump administration caused with its 2022 regulations.

This damage included requiring college students’ complaints of sexual harassment or sexual violence to go to a live hearing where the complainant and the accused is cross-examined in the presence (usually via Zoom) of the other party. This requirement is rife with problems and has contributed to the breakdown in students’ trust in local universities and other Bay Area institutions’ commitment to student sexual safety in recent years.

Title IX cases are administrative, akin to human resources investigations. They address whether the accused student should receive discipline from the school for a violation of school policy. The due process requirements are not remotely the same as in criminal court. Most other student conduct issues and HR investigations are handled through a much simpler process that does not include a hearing.

Title IX hearing officers and parties’ advisors who conduct the cross-examination are often members of the campus communities, not trained lawyers or judges. Sometimes only one party can afford to retain an attorney.

Importantly, Title IX is a civil rights statute aimed at ensuring universities protect students from sex-based discrimination, including sexual violence, relationship and dating violence and stalking. The hearing requirement, however, has been weaponized and politicized to build an excessive and convoluted infrastructure that places disproportionate emphasis on the rights of the accused and minimizes victims’ concerns.

The supposed underlying thinking — that cross-examination is the best way to allow a decision maker to assess the credibility of the parties — is outdated, as demeanor on the stand can be misleading when PTSD and discomfort addressing highly personal topics may cause victims to appear evasive or hesitant. Lay decision makers are ill-equipped to assess credibility.

The rigorous process in Title IX cases perpetuates the harmful and erroneous trope that victims of sexual violence are more likely to lie, thus creating an antagonistic atmosphere. This may keep victims from reporting incidents or seeking supports and services, which the Title IX office is tasked with coordinating, even absent an investigation or hearing.

So the cases in which the most trauma exists are the very ones subjected to the process most fraught with risk of re-traumatization and most likely to be deterred from seeking supports.

To encourage reporting, universities must first assure victims the process will be fair and independent of any pressure or interference from the university. That means the Title IX office needs to hire credible and qualified staff and leaders, conduct robust outreach so that students get to know and trust the people there and keep parties’ information private.

But Title IX offices often lack the full independence needed to ensure impartiality, oversight of the university’s overall compliance and student privacy. Title IX offices are under-resourced and overworked and may not prioritize outreach. I know these challenges firsthand from my experience as the Title IX coordinator at Santa Clara University — which had its own significant trust issues prior to my tenure — and they make it even more important that universities abandon the distrusted hearing requirement.

Colleges and universities now have the chance to eliminate this major impediment to supporting victims and identifying and responding to sexual misconduct. For students to access their education, they need to be as free from trauma as possible— trauma inflicted by another student or by the very institution they look to for safety and support.

San José Spotlight columnist Aaron B. Zisser is a civil rights attorney based in San Jose (www.zisserlaw.com). He previously served as San Jose’s Independent Police Auditor and the Director of Equal Opportunity and Title IX Coordinator at Santa Clara University, investigated or oversaw investigations of police conduct in San Francisco and Oakland, and consulted on police, jail, and prison oversight. Early in his career, he spent more than five years investigating and monitoring correctional, mental health, and educational agencies as an attorney with the Civil Rights Division of the U.S. Department of Justice in Washington, D.C. and worked at a nonprofit civil rights organization in Philadelphia. His opinions are his own. His columns appear every first Friday of the month. Contact Aaron at [email protected].