Among the many questions a student facing a Title IX /Clery Act /VAWA sexual assault or intimate partner violence misconduct charge may ask is the question: “Who is my adjudicator?” It is a critical question and one that is sometimes overlooked because it usually does not become pertinent until later in the process. After a charge is brought, the responding student is normally overwhelmed with reading the institution’s sexual misconduct policy which often is in excess of 30 pages and broken down into various subparts including policy definitions, resources and reporting options, complaint investigation procedures, and prevention and awareness programs.
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Once in the heart of the policy the student is tasked with trying to understand the importance of concepts such as affirmative consent, incapacitation, hostile environment, preponderance of the evidence, and the plethora of definitions within definitions (one university’s definition of sexual harassment encompasses three-quarters of a page with thirteen bullet points of examples of conduct that may violate the policy that ranges from an inappropriate sexual joke to forcible rape).
Somewhere after reading about prohibited conduct, the process for investigation, and interim measures, the student will encounter a section on hearings, but only if he or she is lucky enough to attend a school that permits hearings (some schools have dispensed with hearings and afford the student what is known as a ‘single investigator model’ of complaint resolution in which one person serves as a prosecutor, judge and jury – but that is an article for another day). Normally hearings are conducted by a panel of adjudicators and those panels often attempt to include a cross-section of the campus community that includes a faculty member, an administrator, and sometimes a student. Some institutions appoint a sole individual to serve in that capacity.
Both Title IX and the Clery Act /VAWA mandate that trained individuals investigate and adjudicate campus sexual misconduct complaints. The Clery Act /VAWA, which applies to both sexual assault and intimate partner /domestic violence investigations and proceedings requires the following:
“[The proceedings will] [b]e conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability;” (see 38 CFR 668.46(k)(2)(ii)).
As is often the case, some institutions embrace the “minimum” language and designate individuals to serve as adjudicators who have no professional training or education in the areas of process or adjudication, save for the aforementioned yearly training. By any reasonable definition of the word, most of the adjudicators assigned by the institutions to adjudicate Title IX /Clery Act /VAWA cases are amateurs (i.e. they do not engage in the pursuit as a profession). This is of particular concern because there is a lot involved in adjudicating a matter beyond determining the facts. That is why, in one of our most cherished institutions – the right to trial by a jury of our peers – we only empower the jury to judge facts and not to rule upon objections, or to admit or not admit evidence. For that, we employ a professional judge. Traditionally the judge is a trained and experienced lawyer who has graduated from law school, passed his or her state’s bar examination, and usually practiced as a lawyer before being elevated to the bench.
There is a reason why we do not entrust jurors with these tasks. It is not because they are not smart, because they are. It is because the process, including determining what constitutes reliable versus unreliable evidence, is complicated and requires years of training to fully understand. For example, do you know the difference between a hearsay statement and an admission? Do you know why one is admissible at a trial and the other is usually not? Most people, unless they are lawyers, do not know the answers to these questions. But knowing the right answer might be the difference between a fair proceeding and an unfair proceeding.
And this is where we encounter two problems with the current Title IX /Clery Act /VAWA campus adjudication proceeding: 1. So much (but not all) “process” has been stripped out of the proceedings (including formal rules of evidence and the active participation of lawyers) so as to make it fundamentally unfair; and 2. Institutions have used the fact that so much “process” has been stripped out of the proceedings to justify a process of adjudication by amateurs, when, in fact, there is an even greater need for professional adjudicators to correctly administer those procedures that do remain.
Problem One is the subject of earlier articles posted on this site and is widely discussed. Problem Two stems from the fact that there are still procedures for adjudicators to follow. Here is a quote from one university’s Title IX Policy as pertains to the hearing:
“The Review Panel may determine the relevance of, restrict or exclude any witnesses or information presented.”
Let us unpack that. Initially, the adjudicator (in this case a panel) is provided with much power and discretion. He or she has the power to determine the relevance of the “information presented” (i.e. evidence). Relevance is a term that has both a legal and non-legal meaning. Which meaning is the institution referring to? If its meaning is one of the institution’s own choosing, how is the student supposed to discern that meaning, and how it will likely be applied?
If it is the legal meaning of that term that applies, then how does the adjudicator possess the ability to discern the proper application of the concept of “relevance?” The legal, evidentiary meaning of “relevance” is basically that it tends to prove, or disprove, a fact of consequence. Relevant evidence requires more than a showing of “materiality,” which has its own definition. Thus, within a “relevant evidence” determination, the adjudicator will need to be sophisticated enough to know whether the proffered evidence 1. relates to a fact of consequence; and 2. tends to prove or disprove that fact.
Beyond the power to determine the relevance of evidence, the adjudicator at this university is empowered to “restrict” evidence. Why and on what grounds? The adjudicator is also able to “exclude” evidence. What exclusionary principles will he or she be applying? Has the adjudicator been educated on what species of evidence is excluded due to its unreliability versus, say, its redundancy? These are fundamental questions.
As you can see, this opens up a Pandora’s Box of issues. It is unlikely that the sophomore sociology major or the assistant director of residential life, well-intentioned though they may be, are the proper persons to figure it all out. Indeed, in the “due process free zones” that are Title IX /Clery Act /VAWA campus adjudications, the lack of procedures demand a more experienced adjudicator who understands, and has been educated as to, the underpinnings of what constitutes a fair process, not a less experienced individual who has had no such training or experience.
Let us not kid ourselves, these adjudications are serious matters. The determination of the adjudicator can, and often does, have lifelong repercussions. The least an institution can do is provide an adjudicator with experience and training in the adjudication process so as to increase the odds that the outcome will be correct. We owe our students nothing less.