Given that it appears the 2020 Title IX Regulations will remain the regulatory law of the land for at least the next several years, the Title IX field is once again working with a prescriptive set of regulations applicable to a very narrow set of complaints. With everything going on in the education compliance field right now, your attention may not be on Process B—the process you use to address any complaints that fall outside Title IX jurisdiction—but it should be.
This Tip of the Week examines several recent developments that underscore the importance of ensuring that your non-Title IX processes receive the attention and due process protections they deserve, especially in light of the emphasis the Trump Administration is placing on Title VI.
Legal Obligations Extend Beyond Title IX Regulations
Two recent decisions—U.S. Department of Education’s Office for Civil Rights (OCR)’s resolution with the University of Notre Dame and a federal court ruling in Poe v. Lowe et al. (Vanderbilt University)—reinforce the crucial takeaway that procedural fairness is required across all disciplinary processes, even those that fall outside the 2020 Title IX Regulations. While these examples involve a student conduct proceeding and a Title IX allegation that pre-dated 2020, there are important takeaways for Title IX Coordinators processing complaints outside the regulations and Title VI Coordinators and other administrators addressing complaints of discrimination under other civil rights laws.
Both cases ruled in favor of students accused of misconduct, citing institutional failures in notice, equitable procedures, and bias-free adjudication. Notably, neither decision relied on the 2020 Title IX Regulations, demonstrating that even as schools expand their policies beyond the scope of those regulations, fundamental fairness remains a legal and compliance imperative across all facets of civil rights compliance.
- Notre Dame: OCR’s resolution against the institution found that denying a respondent proper notice, equal access to resources, equal access to evidence, and a fair hearing constituted sex discrimination and denied the respondent due process, even though the case predated the 2020 Regulations.
- Poe v. Lowe: Similarly, the federal court ruled that Vanderbilt’s failure to follow its own policies gave rise to a breach of contract claim, even though this case was addressed as a traditional student conduct matter and fell outside of the 2020 Regulations.
Takeaway: Institutions cannot assume that it is only the formal Title IX grievance process under § 106.45 of the 2020 Regulations (Process A) that requires heightened procedural protections. Parallel or alternative college processes (Process B) for broader discrimination and misconduct complaints must also ensure fairness and equity.
Investigative Bias and Hearing Panel Fairness Scrutinized
- Notre Dame: OCR found that decision-makers applied their policies inconsistently. Specifically, Notre Dame treated the respondent’s testimony with skepticism while shielding the complainant from similar scrutiny. OCR also identified another concern: Notre Dame’s investigators failed to clarify key allegations and only interviewed the complainant’s witnesses, demonstrating procedural bias. While Notre Dame provided a “resource coordinator” to both complainants and respondents, the respondent’s assigned individual did not proactively notify the respondent about resources, such as counseling, in stark contrast to the communications initiated by the complainant’s resource coordinator, suggesting that parity in advisor training/quality is a priority for OCR, and thus should be for our field.
- Poe v. Lowe: Poe alleged that Vanderbilt’s disciplinary panel operated with bias and failed to afford him equitable procedural protections, which the court determined was enough to advance a breach of contract claim. The court also allowed Poe’s “selective enforcement” complaint under Title IX to continue when administrators selectively chose to move forward with an investigation against Poe, a male student, but not to investigate two female students also named in the complaint who were alleged to engage in substantially similar misconduct. The court in Poe was also suspicious that administrators acted callously toward Poe when delivering the outcome letter, despite credible reports that Poe posed a risk of harm to himself.
Takeaway: Regardless of whether a complaint is addressed under Process A or Process B, institutions must ensure that coordinators, investigators, decision-makers, and appeals officers are trained to apply uniform standards, free from gender bias or preconceived notions. This also means that institutions should work in a way that removes silos and provides resources to students broadly, even when they are accused of misconduct. Remember, tone matters. Showing sensitivity and consideration to a complainant but not to a respondent can trigger liability in court.
Why This Matters as Institutions Expand Their Policies
With many institutions adopting a dual-process model—one for formal complaints of sexual harassment under Title IX (Process A) and another for broader discrimination and harassment claims (Process B)—these legal decisions highlight key compliance and liability risks that extend beyond the 2020 Regulations. Wherever these processes live, be it in student conduct, human resources, or elsewhere, schools generally have greater flexibility in shaping non-Title IX policies, but if the processes fail to provide adequate procedural safeguards, they can set the foundation for OCR complaints and lawsuits, nonetheless.
This emphasis on fundamentally fair processes beyond Title IX is particularly relevant now. Much like Title IX, Title VI processes that lack clear notice, allow disparate treatment of parties, or result in biased adjudications, could lead to significant OCR scrutiny, legal challenges, and reputational harm. Institutions must take proactive steps to ensure that Process B applies strong due process protections across all discrimination-related cases, particularly those arising under Title VI.
A Solution for Fair and Flexible Process B: ATIXA’s 1P2P Model
As institutions refine their dual-process approach, ATIXA’s One Policy, Two Procedures (1P2P) Model provides a workable solution that balances due process protections with procedural flexibility. Under 1P2P, Process A aligns with the formal Title IX Regulations, while Process B remains robust to ensure fair and thorough investigations and hearings in cases that fall outside the strict federal framework, while also still able to address mandates stemming from VAWA § 304. This approach allows institutions to:
- Apply consistent protections across all complaints of discrimination, misconduct, and harassment, whether under Title IX, Title VI, or based on internal policies.
- Ensure procedural safeguards without being overburdened by strict compliance requirements in non-Title IX complaints.
- Mitigate legal risks by embedding clear, consistent due process protections in all discrimination and harassment complaint resolutions.
Bottom Line
Whether fearing OCR review or federal court scrutiny, institutions must recognize that fundamental fairness is not optional. Whether by causes of action in contract, due process, Title IX, or other bases, courts will find a way to scold institutions for systemic unfairness. Both Process A and Process B must afford consistent due process protections and offer procedural integrity, with high levels of training for those involved in administering the processes. As schools expand their policies, the key takeaway is clear: procedural fairness protects not only complainants and respondents but also institutions themselves from significant legal risk.
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