Dual-Track Discipline in Title IX Cases Denies Due Process

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Dual-Track Discipline in Title IX Cases Denies Due Process

Title IX

At Rosenberg & Ball Co., LLC, Title IX litigation makes up a good portion of our work. Title IX* complaints involve men and women who have been accused of inappropriate sexual behavior on college and university campuses. Litigation ensues when someone believes they have been wrongfully accused; often this includes having been denied due process under the law by the institution that handled the complaint.

We are very concerned with sexual assault and sexual harassment; and we are equally concerned with the due process rights of those accused — particularly those wrongfully accused. We see many due process red flags in the recent policy proposals from the U.S. Department of Education’s Office of Civil Rights (“OCR”). (Questions and Answers on the Title IX Regulations on Sexual Harassment, July 2021)

Due process — fair treatment and protection of the legal rights of all parties involved — is a cornerstone of this country’s justice system. Without it, any one of us can be punished for something we did not do. Allegations do not – and should not — constitute evidence.

Due process protections are being eroded in situations involving off-campus allegations of sexual misconduct. OCR is encouraging schools to address these allegations via codes of conduct that do not provide the live hearings and cross-examination mandated in the Department’s 2020 regulations that were codified in 34 C.F.R. §106. (See generally, pgs. 6-7, Questions and Answers on the Title IX Regulations on Sexual Harassment, July 2021, at Question 7, discussing same.)

This erosion of due process rights was foreseen by Eric Rosenberg who testified at an OCR hearing about the need to eliminate these dual track disciplinary systems. Mr. Rosenberg discussed how such dual track systems can trigger lawsuits because they cause disparities in rights for similar disciplinary adjudications. For, at least one court found that a school’s establishing dual track disciplinary processes can constitute evidence of sex discrimination under Title IX when the school designs the second track to provide fewer protections than OCR’s regulations. (See Doe v. Rensselaer Polytechnic Inst., No. 1:20-CV-1185, 2020 WL 6118492, at 7 [N.D.N.Y. Oct. 16, 2020] (“[A] school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.”)

Due process does not hinder truth coming out; in fact, truth is always the goal. For sexual assault and harassment to be reduced and eliminated in our society, veracity of claims that have been investigated with due process for all involved must be the foundation of all proceedings. Without due process, there cannot be justice, which is our common goal. We reject any dual track system in Title IX disciplinary processes. We advocate for law enforcement to investigate possible crimes, and for Title IX departments in institutions of higher learning to develop investigatory and other procedures that ensure due process to the accused.

If you or someone you know has been wrongfully accused of sexual assault or harassment in a higher education setting, you are entitled to civil rights protection, and you should consider speaking to an attorney who specializes in Title IX litigation.


(Title IX is a federal education law passed in 1972 that seeks to end sex discrimination in educational programs that receive federal funding. Colleges and universities in the U.S. direct sexual harassment and sexual assault complaints into departments given the same name as this civil rights law, “Title IX.”)

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