For about two years, a model colleges have used to evaluate sexual violence allegations — known as single-investigator — has been forbidden by federal regulation.
The system involves one individual examining the facts of a case and making a decision on its outcome. The framework laid out an attractive prospect for colleges: minimizing stress on sexual abuse survivors while streamlining procedures.
Having one person serve as inquisitor and decision-maker may appear to make these processes more efficient. However, experts in Title IX — the law banning sex-based discrimination and violence in federally funded schools — say the model deprives students of due process protections. Further, they say, it injects one person’s bias into proceedings and increases the likelihood that the investigator might miss key facts that could sway a case’s outcome.
Despite these flaws, the Biden administration is poised to once again allow colleges to use single-investigator frameworks. Last month, the U.S. Department of Education introduced a draft Title IX rule that would pull back the regulation mandating that institutions hold live hearings to adjudicate sexual misconduct cases. Instead, colleges could devise their own systems within the draft rule’s confines, which could be a version of the single-investigator model.
Civil liberties advocates and Title IX practitioners have scorned the Biden administration’s return to the single-investigator model and said they worry it would erode faith in colleges’ Title IX processes, which have already been heavily politicized over the past decade.
A lack of trust
Due process activists saw problems with Title IX guidance the Obama administration first released in 2011. Though the policies were widely credited with raising awareness of campus sexual violence, these advocates argued the guidance led administrators to fear losing their federal funding over a Title IX violation. In turn, they said, campus officials overzealously applied the law and found accused students responsible for these crimes while ignoring their due process rights.
At the time, the Obama administration had encouraged single-investigator systems. In 2014, his White House issued a report with recommendations on shielding students from campus sexual violence as part of the administration’s years-long campaign to illuminate the problem.
Federal officials in the report lauded the single-investigator approach as innovative. Officials said it encouraged survivors to report incidents, fortified trust in the process and preserved accused students’ rights to be heard.
Former Education Secretary Betsy DeVos rescinded the Obama-era guidance in 2017. She helped devise the current regulation that requires live adjudicatory hearings and blocks single-investigator systems. It came into force August 2020.
The Biden administration’s draft rule would again greenlight single-investigator systems, though its final iteration will likely not take effect for many months, as the Ed Department must respond to public comments provided over a 60-day period.
As it was writing the proposal, the Ed Department heard feedback that separating the investigator and adjudicator roles burdened some colleges, “particularly those that are under-resourced or that do not have a large number of staff,” a regulatory document states.
Also, having additional staff members be decision-makers on a Title IX case they're unfamiliar with can prolong the process, according to public comments the department received.
Using a single-investigator system allows colleges to draw from a small pool of trained experts, the department said. This model would enable institutions “to more easily and effectively deliver the highest level of expertise available for assessing allegations and evidence,” the document states.
Some colleges also told the department they saw more students seeking help and reporting Title IX complaints under a single-investigator model.
An Ed Department spokesperson said in an email the draft policies “set out requirements to ensure that every school’s process for investigating sex discrimination complaints is adequate, reliable, and impartial.”
“Schools must use an effective option for resolving complaints of sex discrimination in a way that ensures fair treatment of all parties and enables compliance with Title IX.”
The argument against single-investigator
Due process advocates are once again widely deriding single-investigator models. Joe Cohn, legislative and policy director for civil liberties watchdog the Foundation for Individual Rights and Expression, said after the draft rule’s release that such systems make one person “prosecutor, judge and jury.”
And not everyone buys into the arguments made in public comments.
One is Joshua Engel, an Ohio-based attorney and partner at the Engel & Martin law firm. He’s a former prosecutor who has represented both accused and accusing students in Title IX cases.
Often, college officials don’t possess the experience to properly investigate sexual misconduct reports, Engel said.
Frequently, they are more stenographers than investigators, he said. They sometimes do not think to fact-check parties’ statements, for instance. Handing an entire case over to one person who lacks this knowledge “would be a disaster,” Engel said.
Thus, a single-investigator model can undermine the credibility of a case’s outcome, he said. The parties involved might be unable to count on a single official to arrive at the correct conclusion if they missed some evidence.
“The goal should be to get the right answer,” Engel said. “Most institutions want to get the right answer, and I’d like to think they’ve come to realize this really isn’t a model that people trust.”
Colleges continued to use single-investigator models, even after Title IX-related litigation exploded in recent years. George Washington University, a prominent private nonprofit college in Washington, D.C., shifted to a single-investigator process as late as 2018.
Hundreds of students have taken to courts to allege institutions had bungled their cases. Often colleges were accused of violating due process and constitutional rights. Some courts agreed, pinning these issues on single-investigator models.
Notably, in September 2018, the 6th Circuit U.S. Court of Appeals found the University of Michigan had infringed on an accused student’s due process rights with single-investigator procedures, ruling he hadn’t gotten the opportunity to adequately challenge the narrative against him.
The court found that colleges must allow students or their representatives to question the other side in a Title IX case.
The ruling meant institutions in the four states comprising the 6th Circuit — Kentucky, Michigan, Ohio and Tennessee — couldn’t use single-investigator models, even before DeVos handed down the regulation that prohibits such systems.
S. Daniel Carter, president of consulting firm Safety Advisors for Educational Campuses, pointed out that some court rulings have required colleges to hold hearings. Institutions in those states can’t rely on single-investigator models, even with the flexibility the Ed Department’s draft rule provides.
He said he doesn’t favor single-investigator systems either and agreed they make errors more likely in the process.
Some sexual assault prevention advocates have said a single-investigator model offers the least traumatic path for survivors to share their stories, Carter said. But a skilled investigator can employ trauma-informed interviews with survivors, he said. That doesn’t mean not scrutinizing their statements.
Students could appeal a case outcome they don’t agree with, Carter said. But the parties may not be aware of mistakes that occurred during proceedings, or the case might fall outside a college’s prescribed categories for appeals.
And students shouldn’t have to rely on an appeals process, Carter said.
“Institutions should strive to get it right from the beginning,” he said.