At oral argument in Doe v. University of Sciences before the Third Circuit, an issue that gets only tangential consideration was front and center: Can the schools using the “single investigator” model for Title IX sexual determinations suffice as a fundamentally fair method? KC Johnson provides the background to the case.
In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.
There are many variations on the use of the single investigator, where the investigator chosen by the college will reach her conclusion of guilt on her own or where the investigator will present her conclusion to a panel, which will then reach its decision as to guilt. As Doe’s lawyer, Josh Engel, wrote in his brief, these amount to distinctions without any real difference.
In this model, an institution’s designated Title IX investigator interviews witnesses identified by the parties and reviews evidence provided by the parties. There is no independent effort to obtain information from third parties or other sources. The investigator then draws a conclusion about whether the accused student has violated school policies. There is no hearing where a party can present evidence and cross-examine adverse witnesses in front of a neutral fact-finder. The investigator literally serves as the police, judge and jury.11
11 Except, of course, that the police usually conduct more thorough investigations.
Here, an attorney merely recorded statements and gathered limited evidence voluntarily
provided by interested parties. This is not an “investigation” of a serious allegation as
the term would be understood by most law enforcement officers.
From the outset, the deck is stacked. It doesn’t have to be, but consider the qualifications of people who seek the job of Title IX investigator, and the people whom institutions select to fill that function. They tend to be people deeply involved with and sensitive to sexual misconduct against women on campus, usually with long histories of activism and proven dedication to the elimination of sexual misconduct against women.
This isn’t to say they lack the qualifications on paper, or lack the ability to present their findings in a gender-neutral fashion, but that their perception of the problem that guides their investigation is grounded in an ideological belief that precludes any fair assessment of the facts. They are dedicated to finding the facts, aggregating and presenting them in such a way as to assure the only “correct” outcome: guilt.
These Title IX investigators interview the accuser and accused, together with those witnesses they deem relevant. They gather evidence they deem relevant. They pursue avenues they deem relevant. If they deem only that which proves guilt to be relevant, then they ignore witnesses and evidence that don’t. It’s left entirely in their hands. When the only evidence presented is evidence of guilt, the outcome isn’t a mystery.
The rhetorical argument, that if Title IX investigators are fair and neutral, it will all turn out swell, is no more logically sound than the old proverb, “If wishes were horses, beggars would ride.” When the entirety of a process is placed in the hands of one person, who then presents conclusions based only on the evidence that supports the conclusion and omits all the evidence that shows it to be baseless or biased, it easily creates the appearance of fairness without any of the substance. Add to this the sort of person hired to play the role of Title IX investigator and the problem is abundantly clear.
So why, then, did 17 law professors file an amicus brief in support of the University?
Civil rights investigations rely primarily or exclusively on professional investigators to conduct a fact-finding process to determine whether and to what extent an accusation of sexual harassment or gender-based violence is accurate. Investigators gather documentary and physical evidence, as well as conduct separate interviews with and make credibility determination about the parties (i.e. the complainant and respondent) and any witnesses. They then synthesize the evidence gathered and write an investigative report where they make factual findings based on the evidence gathered.
Sounds rather warm, fuzzy and official, but the essence of their argument was better captured in their summary:
Non-adversarial, civil rights investigation methods advance comprehensive prevention of this harassment and violence more effectively than do the live, adversarial hearing-based methods that John Doe is demanding that Appellee use. Comprehensive prevention of sexual harassment and gender-based violence is a public health-based approach that incorporates primary, secondary, and tertiary forms of prevention. Civil rights investigation methods function as much more effective secondary and tertiary prevention than adversarial, live hearings do.
The first give-away is the use of the word “non-adversarial,” which replaces what the model should be called in the affirmative: Inquisitorial. If the inquisitor deems the accused guilty, then he is, and the accused is denied the ability to challenge the inquisitor’s conclusions because the conclusion has already been decided.
But the second idea, buried in this summary, is that neither the finding nor the sanction is about the accused, but about “public health” and “prevention.” In other words, the guilt of the accused isn’t particularly important to the cause, as promoting the notions that accusations will be inherently believed and accusers will be severely sanctioned serves the greater good of eradicating sexual misconduct. As for the accused, he’s just collateral damage in furthering the civil rights outcome.
While most arguments about the single investigator model tend to revolve around the mandates of due process and fundamental fairness, whether under the Constitution, or express or implied contractual terms, few cases directly confront the inherent impropriety of making one individual “judge, jury and executioner.” How much procedural due process is required, and how that can be achieved in a grossly sub-optimal setting such as a campus sex tribunal, raises one question. But there should be no question that the inquisitorial model, no matter how one characterizes the virtues of the inquisitor, invariably fails to provide the accused with a fair process. But as the 17 law profs argue, that was never the purpose.