Comment of a Concerned Member of the Public in Support of Fundamental Fairness for

All Parties in Title IX Grievance Proceedings

TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY

LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR
SUPPRESSION OR ADMISSION DURING HEARINGS

Department of Education Notice of Proposed Rulemaking

Docket No. ED-2018-OCR-0064, RIN 1870–AA14

Nondiscrimination on the Basis of Sex in Education Programs or Activities

Receiving Federal Financial Assistance

Submitted January 20, 2019

Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com
 TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY
LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR
SUPPRESSION OR ADMISSION DURING HEARINGS

Draft Rules involved (emphasis added to the proposed supplied lawyer provisions):

§ 106.45 Grievance Procedures for formal complaints of sexual harassment.

(b)(3)(vii) For institutions of higher education, the recipient‘s grievance

procedure must provide for a live hearing. At the hearing, the decision-maker
must permit each party to ask the other party and any witnesses all relevant
questions and follow-up questions, including those challenging credibility. Such
cross-examination at a hearing must be conducted by the party‘s advisor of choice,
WHO SHALL BE AN ACTIVE MEMBER OF THE BAR OF ANY STATE
AND SHALL BE SELECTED BY THE PARTICIPANT AND SUPPLIED BY
THE RECIPIENT, notwithstanding the discretion of the recipient under
subsection 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may
participate in the proceedings. If a party does not have an advisor present at the
hearing, the recipient must provide that party an advisor aligned with that party
for to conduct cross-examination. All cross-examination must exclude evidence of
the complainant‘s sexual behavior or predisposition, unless such evidence about
the complainant‘s sexual behavior is offered to prove that someone other than the
respondent committed the conduct alleged by the complainant, or if the evidence
concerns specific incidents of the complainant‘s sexual behavior with respect to
the respondent and is offered to prove consent. At the request of either party, the
recipient must provide for cross-examination to occur with the parties located in
separate rooms with technology enabling the decision-maker and parties to
simultaneously see and hear the party answering questions. The decision-maker
must explain to the party‘s advisor asking cross-examination questions any
decision to exclude questions as not relevant. If a party or witness does not submit
to cross-examination at the hearing, the decision-maker, ON THE MOTION OF
THE LAWYER FOR EITHER PARTY, must not rely on any statement of that
party or witness in reaching a determination regarding responsibility;

Forcing schools to supply lawyers for all participants is the only way to preserve the
participants’ due process or fairness under Title IX:

A. Achieving the Real Due Process or Fairness Required During a Live Hearing
Creates a Professional Competence Problem for Participants:

Juan and Jane, sophomore and junior respectively, are friends who end up in
Jane‘s dorm room where they agree to teach each other kissing techniques. Sometime
later, Jane accuses Juan of untoward behavior during that meeting. Jane files a formal
Title IX complaint invoking these Draft Rules and triggering a live hearing.

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 The school documents that Jane‘s friend Mary saw Jane crying after that night
and that Mary has spoken to the press criticizing the school‘s Title IX enforcement. The
school also documents that Juan‘s friend Peter saw Jane and Juan go to friendly meals
several times after that night. Jane‘s mom, an alumna who donated the school‘s science
auditorium, writes stating that Jane has a history of making-up attention getting stories.
Juan states that it was Jane who kissed him in a place he did not want to be kissed that
night, and that a Dean threatened to remove his financial aid in light of Jane‘s complaint.

Jane, Juan, Mary, and Peter testify at the live hearing. None of them has ever
been in any adjudication before. All of them look to the school‘s staff as authority. (1).
Obeying Draft Rule § 106.45 (b)(3)(vii) the school allows Jane an advisor. She asks a
psychologist. Juan asks a banker who belonged to his Fraternity. Juan is expelled and
sues the school, claiming sex discrimination and due process (or fairness if the school is
private) violations. Juan‘s complaint brims with details about the school and Jane to make
it plausible enough to survive a motion to dismiss. (2) Thus, because non-lawyers
usurped roles only lawyers can fulfill, part of Juan‘s litigation will focus on the systemic
failure of due process during his live hearing as a cause of his gender discrimination.

B. Title IX Live Hearings Without School Provided Lawyers Violate Title IX’s
Guarantee of Procedural and Substantive Due Process or Fairness.

In the trauma of the hearing, Juan and Jane fail to effectively question each other,
to address credibility, to point out inconsistencies, as well as to move to admit or to
suppress evidence. Instead, Juan told the former judge who serves as the school‘s
adjudicator of choice (3) what his advisor told him to state: his life as a man of color, son
of immigrants, and successful member of the swim team. Jane tearfully stated as her
advisor suggested that the hearing‘s re-traumatization validated the school‘s patriarchy
and did nothing to stem her pain or the campus rape epidemic. (4). On this fact pattern it
is not clear if either party violated Title IX. What is clear, however, is that Juan did not
benefit from the real procedural or substantive due process which these Draft Rules
guarantee for him because the school did not provide him with a lawyer. As a corollary,
Jane will have her re-traumatizing day in court made tougher by the fact that the school
also did not provide her with a lawyer. (5). Thus, for the school to not provide lawyers
obfuscates the real due process or fairness promised in Draft Rule § 106.45 (b)(3)(vii).

Because they are not lawyers, Juan and Jane failed to achieve any due process or
fairness by noting violations which would have been fatal to either the complaint, or its
response. These violations, where the stakes play with the respondent‘s life and the
complainant‘s safety, are complex. And while the hearing-related procedural due process
promise in Draft Rule § 106.45 (b)(3)(vii) guarantees students a right to be heard,
students are not heard well, given the complexity of what they have to speak, without
legal representation. This flaw and its effect, the hearing‘s loss of legitimacy, in turn,
cause everyone to call school adjudications kangaroo courts. (6). Similarly, the hearing-
related substantive due process promise in Draft Rule § 106.45 (b)(3)(vii) guarantees to
students that the arbitrary taking of their education will not happen, namely, that gender
will not be used against them, but gender will be used against them absent a lawyer. (7).

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Students cannot adequately argue these esoteric due process points at a hearing without
legal representation, even assuming they were not traumatized, had any reason to suspect
these arguments, and possessed the skill to state them. In addition, violations of due
process is what the bulk of reverse-Title IX law grows out of and these need to be legally
preserved on the hearing‘s record (8). However, as Draft Rule § 106.45 (b)(3)(vii) now
stands, with no provision for lawyers for both parties, it expects a neophyte to effectively
argue all this, weaving facts and law into a story that carries the day. This is not just
impossible (even among law students) but also in conflict with the requirement in Draft
Rule § 106.45 (b)(3)(ii) that the school shall provide equal opportunity. Thus, absent
school-provided lawyers, the live hearing fails to achieve any of the real due process
promised in Draft Rule § 106.45 (b)(3)(vii).

Consider the result with real due process at the hearing through the school‘s
provision of lawyers for each side. First, to exonerate Juan, his lawyers would have
secured Peter‘s evidence of Jane‘s confirmation in a sworn affidavit. His lawyers would
have scoured the record for the treatment of Juan‘s accusation against Jane. Finally, they
would have argued the record‘s gender bias such as in the Dean‘s threat, and would have
introduced inconsistencies including Jane‘s greater age and her close relation to the
school‘s fundraising effort. (9). Importantly, lawyers for Juan would not have cross-
examined Jane angrily, but rather would have found an ethical way to elicit her reaction
to these facts. (10). Second, to exonerate and to protect Jane, her lawyers would have
prevented Mary‘s testimony as it suggests gender bias, noted that Peter proves that Juan
also confirmed Jane‘s touching, and defined how this experience actually denied Jane‘s
educational benefits as guaranteed under Title IX. Third, to lessen the school‘s liability,
the joint efforts of Juan‘s and Jane‘s lawyers would allow the adjudicator to act as a more
impartial actor (11) who learns systemically biased evidence against Juan from the school,
(including, for example, that they simply do not trust him because he is a man, or that
they clearly have an interest in protecting Jane because she is a woman, (12)) and who
then impartially selects the competing evidentiary record that supports either outcome.

C. Schools Need to Provide Real Due Process and are Optimally Placed to
Budget, and to Supply, Lawyers for Complainant and Respondent.

It makes little sense for the school to have spent on the hearing, but to not have
supplied Jane and Juan with lawyers for it to cure its fatal flaw of no real due process or
fairness. If that is education today, then schools should allow students into the classroom
to self-teach, and dispense with the faculty. If that is education today, all schools should
stop attracting applicants with promises of due process or fairness in Title IX. (13). Yet,
even under Draft Rule § 106.45 (b)(3)(vii), schools will violate Title IX‘s promise with
the illusory nature of the live hearing because there is no due process or fairness for
anyone who appears without a lawyer. Only the school can cure this flaw by providing
lawyers (14). And only lawyers at live hearings help assuage the schools‘ brand name
loss and the professional chaos that accompanies Title IX litigation. (15). Further, only
schools can externalize the potential expense of supplying lawyers through their tuition,
just as they now do for athletic activities and the like. (16). Thus, the fundamental need
to provide lawyers is self-funded and best amortized by the schools.

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 Draft Rule § 106.45 (b)(3)(vii) requires the school to provide for live hearings to
maintain due process or fairness. As a corollary, due process imposes an inchoate duty
on the school to pay the lawyers for participants because only then does the live hearing
empower students to be heard and to avoid arbitrary punishment. Absent lawyers, it is
the adjudicator who applies a web of esoteric rules (of procedure, evidence, and these
Draft Rules) necessarily against or in favor of one of the parties. And while schools
continue to claim that a live hearing is an administrative procedure, that is not so. (17).
Thus, like it or not, schools must supply lawyers for these adjudications because
fundamental rights are at stake. (18). Finally, for schools to have counselors and other
non-lawyers appear on behalf of participants is a morally wrecked practice that could be
prosecuted as unauthorized practice of law. (19). That is a claim that many could raise
independently from any Title IX lawsuit against the school. (20). Thus, the suggested
amendment to Draft Rule § 106.45 (b)(3)(vii) establishing that schools will supply
lawyers for complainants and respondents is the only way to allow participants to achieve
and benefit from real due process or fairness as is promised in these Draft Rules.

For years after graduating from UCLA Law School I did not know about campus
rape, false accusations, Title IX, the Clery Act, or VAWA. But while I have been in
those trenches since that crisis came to the limelight, this personal concern over the Draft
Rules reflects the fair protection I want from Title IX if I go back to school. Thus, none
of this comment constitutes law practice, opinion of law, or a legal advertisement. (21).

Thanks for your kind attention.

/s/
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com

ENDNOTES:

1. See, e.g., ―Students often identify with and trust—even love—their schools, and
are dependent on them in many ways. Students frequently believe the institutions
they dreamed of attending will identify with and want to help them. Uncovering
and living through the slowly unfolding nightmare of its other agendas and higher
priorities comes as a shock…Accounts of institutional betrayal litter the
mainstream press, social media, and Title IX case law.”

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 In Their Hands: Restoring Institutional Liability for Sexual Harassment in
Education, Catharine A. MacKinnon, Yale Law Journal, Vol. 125 No, 7, May
2016, available at:

https://www.yalelawjournal.org/feature/in-their-hands-restoring-institutional-
liability-for-sexual-harassment-in-education#_ftnref59

2. One way to secure the pleading of short complaints consists of national adoption
of the Second Circuit‘s standard in Doe v. Columbia University, 831 F.3d 46 (2d
Cir. 2016) which extrapolated the burden-shifting framework first used for race
claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) to
reverse-Title IX. Under this vastly more equitable pleading approach, ―the
plaintiff needs to present only minimal evidence supporting an inference of
discrimination in order to prevail [on a motion to dismiss.]‖ (Columbia Univ., 831
F.3d at 54). The 2nd Circuit held that ―the temporary presumption afforded to
plaintiffs in employment discrimination cases under Title VII applies to sex
discrimination plaintiffs under Title IX as well.‖ (id). The court held that Title IX
claims have so much in common with Title VII claims that on ―certain sorts of
facts, rules the Supreme Court established for Title VII litigation appear to apply
also to such similar claims of sex discrimination under Title IX.‖ (id at 55).

See, also, Bethany A. Corbin, Riding the Wave or Drowning?: An Analysis of

Gender Bias and Twombly/Iqbal in Title IX Accused Student Lawsuits, 85
FORDHAM L. REV. 2665, 2666 (2017) arguing that: ―…most courts
erroneously dismiss these lawsuits at the 12(b)(6) stage. Through a
misinterpretation of plausibility pleading, these courts hold that accused
perpetrators have not shown causal evidence of discrimination at the outset of the
lawsuit. This pro-dismissal approach, however, violates Swierkiewicz v. Sorema
N.A.‘s proclamation that a plaintiff need not plead a prima facie case of
discrimination in the complaint.‖ Professor Corbin‘s article is available at:

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.co
m/&httpsredir=1&article=5384&context=flr

3. It is not the case that an independent contractor working as a legal mediator,

which most often Title IX provisions in schools‘ manuals call an ―adjudicator,‖
works as an independent and impartial agent. The contractor develops skills that
are only marketable to one audience: The schools. That relationship creates bias
in favor of the schools:

―Over the last 10 years, thousands of businesses across the country —

from big corporations to storefront shops — have used arbitration to create
an alternate system of justice. There, rules tend to favor businesses and
judges and juries have been replaced by arbitrators who commonly
consider the companies their clients, The Times found.‖

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 Jessica Silver-Greenberg and Michael Corkery, In Arbitration, a ‗Privatization of
the Justice System‘, The New York Times, November 1, 2015, available at:

https://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-
privatization-of-the-justice-system.html

See also, When Choosing the Right Mediator Don't Overlook Implicit, Cognitive
Biases, Robert H. Barron the Legal Intelligencer,| September 14, 2018, available
at:

https://www.law.com/thelegalintelligencer/2018/09/14/when-choosing-the-right-
mediator-dont-overlook-implicit-cognitive-biases/?slreturn=20190022155718

4. Every decent person shares the concern that many women have been subjected to
unwelcome conduct or pressure while studying in the United States. However, the
claim that one in five women is sexually assaulted in college, a claim that has
long been the basis for advocacy efforts, school disciplinary procedures, and
government policy decisions, is based on anonymous surveys, not scientific
studies, and has been seriously challenged. See, e.g.,
https://www.washingtonpost.com/news/factchecker/wp/2014/12/17/one-in-five-
women-in-college-sexually-assaulted-anupdate/?utm_term=.7f211e30541e;

http://www.slate.com/articles/double_x/doublex/2015/09/aau_campus_sexual_ass
ault_survey_w hy_such_surveys_don_t_paint_an_accurate.html.

The Bureau of Justice Statistics‘ National Crime Victimization Survey reports a

much lower rate of sexual assault: 6.1 per 1000 female students from 1995 to
2013, with the rate trending downwards. That study is available at:

https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.

5. The National Women‘s Law Center has encouraged its supporters to file
comments on these draft rules considering that under Draft Rule § 106.45
(b)(3)(vii):

―Colleges and universities would be required to subject survivors to live

cross-examination by their rapist‘s adviser of choice—often an attorney
who is prepared to grill the survivor about the traumatic details of their
assault. This person could also potentially be an angry parent or a close
friend of the named assailant.‖

NWLC Comment Guide re Title IX NPRM, available at:

https://docs.google.com/document/d/1KtkFfZQZS6j8KqZcktleCgGd6lc1acRtgSx
SrbIuA3A/edit#

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 No one doubts that a live Title IX hearing traumatizes. The fair view, however,
requires considering that the respondent and the witnesses experience trauma as
well such that both require the protection of a lawyer. See generally Claudia
Avina & William O‘Donohue, Sexual Harassment and PTSD: Is Sexual
Harassment Diagnosable Trauma?, 15 J. Traumatic Stress 69 (2002); Ivy K. Ho et
al., Sexual Harassment and Posttraumatic Stress Symptoms Among Asian and
White Women, 21 J. Aggression, Maltreatment & Trauma 95 (2012); Patrick A.
Palmieri & Louise F. Fitzgerald, Confirmatory Factor Analysis of Posttraumatic
Stress Symptoms in Sexually Harassed Women, 18 J. Traumatic Stress657 (2005).

6. Kangaroo court is the norm term in print media headlines on the Title IX crisis.
For example, consider one of many reports that these Draft Rules are expected to:

―Not only will these rules restore basic due process and fairness to college
tribunals, but they also — given how basic the changes are — highlight
just how ridiculous university kangaroo courts have become.‖

Betsy DeVos Strikes a Blow for the Constitution, David French, National Review,
November 16, 2018, available at:

https://www.nationalreview.com/2018/11/betsy-devos-strikes-a-blow-for-the-
constitution/

See, also., 'Kangaroo Court': Lawyers Weigh in on Betsy DeVos' Proposed Title
IX Policies for Handling Sexual Misconduct on Campus Raychel Lean | National
Law Journal, September 12, 2018 available at:

https://www.law.com/nationallawjournal/2018/09/12/kangaroo-court-lawyers-
weigh-in-on-betsy-devos-proposed-title-ix-policies-for-handling-sexual-
misconduct-on-campus/

7. Any school or district court believing that the respondents‘ interests--in the
context of a punitive live hearing that will lead to their expulsion and a lifetime of
stigma--are not entitled to full, real, due process or fairness, including gender
neutrality, risks splitting the circuits and comes at odds with the enlightened view
of the 6th Circuit‘s decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)
holding that ―[I]f a public university has to choose between competing narratives
to resolve a case, the university must give the accused student or his agent an
opportunity to cross-examine the accuser and adverse witnesses in the presence of
a neutral fact-finder.‖ In Draft Rule § 106.45 (b)(3)(vii) the Department of
Education codifies Baum.

District Courts are citing Baum as the new norm. For example, as recently as
January 16, 2019, in Doe v. the University of Mississippi, Case 3:18-cv-00138-
DPJ-FKB, (SDMS), the University failed to dismiss Doe‘s complaint because he
averred gender-based flaws in Mississippi‘s Title IX process including not
following the safeguards in Baum. The University of Mississippi‘s

7
 discriminations against Doe ranged the gamut of issues that Doe‘s lawyers would
have ideally pointed out during and preserved on the record of the live hearing
(there was none in this case) under Draft Rule § 106.45 (b)(3)(vii). Importantly,
the Mississippi case points out the gender-bias vulnerabilities of every school that
redesigned its sexual assault policy under the former DOE guidance. See, Court:
Exclusion of evidence, biased training, lack of cross-examination, low evidentiary
standard may have violated student‘s due process rights. Samantha
Harris January 17, 2019, FIRE, available at:

https://www.thefire.org/court-exclusion-of-evidence-biased-training-lack-of-
cross-examination-low-evidentiary-standard-may-have-violated-students-due-
process-rights/

8. Under Draft Rule § 106.45 (b)(3)(vii), the procedural due process prong of the
Title IX hearing includes and specifically involves the right of the complainant or
the respondent to introduce evidence and, if the evidence is ignored or precluded,
to file objections on the record and to have those objections preserved for
appeal—be it an appeal within the school or litigation. These objections have a
complex, technical nature not obvious to the neophyte or to the non-lawyer.
Consider the added complexity of this task because the substantive due process
prong, similarly guaranteed during the live Title IX hearing, tends to consist of
legally esoteric reasons that substantiate these objections. In this fact pattern, for
example, none of what Juan and Jane told the adjudicator met the relevance
standard of the objection process. Thus, again, because this objection process
best relates to the métier of lawyers, absent lawyers laying this record,
respondents lose the due-process-guaranteed chance for their litigation to survive
under the most prevalent reverse-Title IX theories, and complainants lose for the
same reason under the direct Title IX theory.

Under both reverse-Title IX tests classically expressed in Yusuf v. Vassar College,

35 F.3d 709 (2nd Cir. 1994), ―erroneous outcome‖ where respondents must show
that the school‘s gender bias and evidence of an inaccurate outcome led to
expulsion, and ―selective enforcement‖ where respondents must show that gender
led to their conviction (requiring the often elusive evidence that a woman accused
of the same violations was treated better than the man), the evidence supporting
either theory, and the objection to its exclusion, must be made on the record at the
time of the hearing or it can be lost. Lawyers have training and licensing that
allows them to do that. Similarly, absent lawyers laying this record, complainants
will not be able to hold the school responsible as they too face the tough challenge
of overcoming the legal negligence standard that school administrators share with
prison wardens—―deliberate indifference.‖ The Supreme Court first imposed the
deliberate indifference test on cases of teacher-student sexual harassment
in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998),
and on student-student cases a year later in Davis ex rel. LaShonda D. v. Monroe
County Board of Education, 526 U.S. 629, 633 (1999). Thus, every participant at

8
 a live hearing requires apt legal representation to achieve real procedural and
substantive due process then and later, should litigation ensue.

9. Juan‘s lawyers would have laid a record showing he has no rapist profile. David
Lisak‘s research provides an example of a matrix to evaluate the likelihood that a
respondent actually sexually harassed the complainant. Lisak found that most
rapists are men who rape and are not detected because they become adept at
identifying victims and testing their boundaries; because they plan and
premeditate their attacks; because they groom and isolate victims physically;
because they control their impulses to use only as much violence as is
instrumental in terrifying and coercing their victims into submission; because they
employ psychological weapons like power, control, manipulation, and threats,
backed up by physical force, rarely resorting to other weapons; and because these
persons deploy alcohol deliberately to incapacitate their victims. See, David
Lisak, Understanding the Predatory Nature of Sexual Violence, 14 Sexual Assault
Rep. 49, 56 (2011).

On this record, the school documented none of these proclivities against Juan and
yet expelled him.

10. See, e.g., Dana Cole, Psychodrama and the Training of Trial Lawyers: Finding the
Story, 21 N. ILL. U. L. REV. 1, 29-31 (2001) which demonstrates how a cross-
examination built around sympathy for a witness's laudable motivations can be
more devastating than the conventional destructive approaches that Title IX
activists object to when the complainant faces either the respondent or his ―angry
parent‖ during the live hearing (See note 5 supra).

Even if the strategic optimality of being nice to witnesses did not persuade those
who fear lawyers at the hearing that this ―niceness‖ will take place, the fact that
the other side has lawyers should work as a guarantee of safety. First, any lawyer
can be the subject of an ethics complaint from virtually any party. Second,
opposing representation is self-enforcing as it creates MAAD, the very tension
that ended the Cold War. On these facts Jane‘s mother‘s letter devastates Jane‘s
credibility and harms the school‘s name. But Jane herself can be protected by her
lawyers. The rules of ethics demanding zealous representation for the client
prevent that client‘s lawyer from allowing her client, as witness, to be abused and
vice-versa. On this point the Model Rules of Professional Conduct state:

PREAMBLE: A LAWYER'S RESPONSIBILITIES

[1] A lawyer, as a member of the legal profession, is a representative of

clients, an officer of the legal system and a public citizen having special
responsibility for the quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As

advisor, a lawyer provides a client with an informed understanding of the

9
 client's legal rights and obligations and explains their practical
implications. As advocate, a lawyer zealously asserts the client's position
under the rules of the adversary system.‖ [Emphasis added]. The rules
are available at:

https://www.americanbar.org/groups/professional_responsibility/publications/mo
del_rules_of_professional_conduct/model_rules_of_professional_conduct_pream
ble_scope/

11. The adjudicator is a judge presiding over the hearing which becomes a bench trial.
The judge is required to have Title IX facility. This means she has pre-set notions
of evidentiary patterns that support or not a complaint or a response. Thus, during
the hearing it is evident that lawyers must speak for each side because:

―… a judge's mind may race ahead of the evidence …[making it critical

that]… lawyers anticipate and move quickly to distinguish their case from
the category of seemingly similar cases to which the judge has assigned it.
Rapid response is especially important where, as here, the judge's early
factual suppositions are confirmed.‖

Paul Holland, Sharing Stories: Narrative Lawyering in Bench Trials, 16

CLINICAL L. REV. 195, 226 (2009). Available at:

http://digitalcommons.law.seattleu.edu/faculty/299

12. One of the best improvements to Title IX in these Draft Rules is at § 106.45(a)
which adopts a gender bias neutral view that schools may not favor the victim
over the respondent. Today, schools routinely argue as a defense to reverse Title
IX lawsuits that they have a legitimate interest in favoring the alleged
victim/complainant (who most often is a woman) over the alleged
perpetrator/respondent (who most often is a man). Draft Rule § 106.45(a) makes
it clear that the schools have no legitimate interest in seeking to change the
deplorable history of campus rape (which mostly targets women) by doing away
with the laudable history of presumption of innocence for everyone.

The schools‘ argument that they can favor the victim/woman is extremely
powerful and unfair to respondents. For example, in Doe v. University of Oregon,
No. 6:17-CV-01103-AA, 2018 WL 1474531, (D. Or. Mar. 26, 2018) Judge Anne
Aiken recently presented a thorough discussion of that defense, which Draft Rule
§ 106.45(a) will do away with. Jude Aiken has no trouble finding that paying
tuition creates a due-process protected property interest in respondents‘ education:

―The Supreme Court has repeatedly emphasized that "education is perhaps

the most important function of state and local governments." Brown v. Bd.
of Educ., 347 U.S. 483, 493 (1954). Both before and after Brown, the
Court has expressed "an abiding respect for the vital role of education in a

10
 free society[.]" San Antonio lndep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30
(1973) (collecting cases).‖

Yet even Judge Aiken finds that the school can well get away with gender bias if:

―To the extent that discovery shows that any bias against plaintiff
stemmed from a purely "pro-victim" orientation, that bias did not violate
Title IX or the Equal Protection Clause. See Doe, 831 F.3d at 57 (noting
that what appears to be gender bias may, in fact, be a predisposition to
believe sexual assault victims, who are dispropo1iionately women). But
another plausible inference from the complaint is that the University was
predisposed to believe Roe because she is a woman and disbelieve
plaintiff because he is a man. That inference could be supported by,
among other things, evidence that when the accused is a woman and/or
when the accuser is a man, the University conducts sexual misconduct
investigations and adjudications differently than it did in this case.‖

And it is very likely the school would get away with this gender bias, absent
Draft Rule § 106.45(a), because what Judge Aiken would like to see, an accused
woman investigated at that school, hardly if ever happens.

But in either case, under Judge Aiken‘s reasoning or under the new reasoning
from Draft Rule § 106.45(a), this is another example of the legal minefield that
awaits the respondent during a live hearing. Thus, respondents‘ due process
(which Judge Aiken finds easily) can only be achieved when the school provides
a lawyer for the respondent and the complainant. There is no real due process or
fairness in a hearing that requires student fluency in these complex legal systems.
The notion that students can represent themselves at the hearing has much in
common with the notion that patients can operate on themselves so long as they
are guaranteed access to the OR.

13. Providing lawyers at the hearing helps the school to fulfill the promises of real
due process or fairness it made to hearing participants in the school‘s application
and other materials. Providing lawyers allows schools to defend against
allegations that false advertising or misleading representations induced hearing
participants to enroll there.

In addition, schools have an even greater incentive to honor these promises by

providing lawyers for students admitted under need-blind, and particularly under
full need policies because the expense of securing lawyers‘ services is clearly
outside the ability of these students‘ financial power and the sad reality is that
some of these students may end up in a Title IX hearing—something the school
knows well at the time it offers them full need admission. Many schools in the
US have different levels of need-blind and full-need policies. A list is available at:

https://en.wikipedia.org/wiki/Need-blind_admission

11
14. School-provided lawyers are meant as a floor, not as a ceiling, to guarantee real
due process or fairness promised during the live Title IX hearing under Draft
Rule § 106.45 (b)(3)(vii). Providing at least some lawyers‘ service to the
complainant and to the respondent helps balance the bargaining position of
economically disadvantaged participants and safeguards real due process. As
Title IX in-school enforcement currently stands, only wealthy participants can go
out and hire lawyers. This economic reality both suggests and likely produces
disparate disciplinary outcomes depending on the parties‘ wealth. This reality
violates the promise in Draft Rule § 106.45 (b)(3)(ii) that the school shall
provide equal opportunity. Under this proposal the school provides a small share
of legal services to both participants and either one is free to accept or to reject
that, be it because the party can afford additional legal services or because the
party rejects the offer of a lawyer, but both are afforded a real, non illusory
chance at due process during the hearing.

15. Perhaps the most recent media explosion of a Title IX scandal with profound
brand-name and career harm involves Michigan State University where
unspeakable, deplorable conduct, duly covered-up, has not only resulted in the
replacement of the school‘s president, but also in the replacement of the school‘s
president‘s replacement who is a former governor of the state of Michigan. See,
e.g., Jack Stripling, At Michigan State, a Disruptive Presidency That Few Could
Muster the Will to End, The Chronicle of Higher Education, January 17, 2019,
available at:

https://www.chronicle.com/article/At-Michigan-State-
a/245508?key=lUtmf4EyiX3iIy8Gt541opMIPxuYb_I2vKDmyEdBNSm2g1sbsvf
jE690KLkXTEJ4NGdkUjhUZy1TX051ZmV6aFZjX0psMGtHcHl5b2N2b3JPV0
gtRERCOUFVcw&fbclid=IwAR164wNLBqStMeHuk1JK1pUPxvkRHhsatU8kn
oVei2lMrnox4s36_r7TfgA

16. Under Title IX‘s interim measures provisions, schools already have duties to
invest and dedicate resources to accommodate both the complainant and the
respondent. These include a wide universe of actions including:

―Interim measures are individualized services offered as appropriate to

either or both the reporting and responding parties involved in an alleged
incident of sexual misconduct, prior to an investigation or while an
investigation is pending. Interim measures include counseling, extensions
of time or other course-related adjustments, modifications of work or class
schedules, campus escort services, restrictions on contact between the
parties, changes in work or housing locations, leaves of absence, increased
security and monitoring of certain areas of campus, and other similar
accommodations.‖

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 UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL
RIGHTS, September 2017 Q&A on Campus Sexual Misconduct, Page 2,
available at:

https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf

To add a duty to provide lawyers meets the same objective as these interim
measure provisions because only then do complainants and respondents achieve
real due process or fairness at the live hearing.

17. See, e.g,: Baum supra note 7 and compare that with the recalcitrant attitude at the
University of Michigan which is under Baum‘s jurisdiction:

―Rick Fitzgerald, assistant vice president for Public Affairs said that the
University decided to implement the interim policy and will be gathering
feedback on the effectiveness of the policy. ―We understand that this new
element in our policy can be upsetting to those involved in the process,"
Fitzgerald said. "We believe questioning by students is less traumatic than
questioning by attorneys and also removes concerns that a student may not
be able to hire an attorney. Also, our process remains an administrative
procedure, not a court hearing.‖

Samantha Small, Student group creates petition criticizing Title IX court ruling.
Tuesday, January 8, 2019. The Michigan Daily, available at:

https://www.michigandaily.com/section/administration/title-ix-will-put-headline-
after

18. Perhaps schools should acknowledge that lawyers do good, and realize that the
saying ―the first thing to do is to kill all the lawyers‖ comes from a Shakespeare
history play where anarchists try to imagine what their England would guarantee.
In a curious foretelling of today‘s campus environment they design an England
long on beer and swag, but short on lawyers:

JACK CADE. Be brave, then; for your captain is brave, and vows
reformation. There shall be in England seven half-penny loaves sold for a penny:
the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small
beer: all the realm shall be in common; and in Cheapside shall my palfrey go to
grass: and when I am king,– as king I will be,–
ALL. God save your majesty!
JACK CADE. I thank you, good people:– there shall be no money; all
shall eat and drink on my score; and I will apparel them all in one livery, that they
may agree like brothers, and worship me their lord.
DICK. The first thing we do, let's kill all the lawyers.

Henry VI, Part 2, Act IV, Scene 2

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Even if schools do not develop an awareness of how much lawyers at the live
hearing will improve their chances to survive litigation claiming systemic failures
of due process or fairness, they should be aware of a large cohort of decisions
suggesting as much:

• In Doe v. University of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D.
Ind. May 8, 2017) the Court responded to Notre Dame University‘s argument that
lawyers were not required because its disciplinary process was educational, not
punitive, with a due process or fairness requirement, stating that: ―This testimony
is not credible. Being thrown out of school, not being permitted to graduate and
forfeiting a semester‘s worth of tuition is ‗punishment‘ in any reasonable sense of
that term.‖).
• Similarly, in Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass.
2016) the Court ruled that a Title IX hearing is punitive and thus entitled to due
process: ―Brandeis appears to have substantially impaired, if not eliminated, an
accused student‘s right to a fair and impartial process. … If a college student is to
be marked for life as a sexual predator, it is reasonable to require that he be
provided a fair opportunity to defend himself and an impartial arbiter to make that
decision.‖).
See also:
Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018);
Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017);
Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016);
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018);
Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss. Sept. 26, 2018);
Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS 157586 (N.D.N.Y. Sept. 16, 2018);
Doe v. Brown Univ., 2018 U.S. Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21, 2018);
Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C. Aug. 14, 2018);
Rowles v. Curators of the Univ. of Miss., No. 2:17-cv-04250 (W.D. Mo. July 16,
2018);
Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018);
Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018);
Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7, 2018);
Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018);
Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS 68364 (S.D. Ohio Apr. 24, 2018);
Roe v. Adams-Gaston, No. 2:17-cv-00945 (S.D. Ohio Apr. 17, 2018);
Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29,
2018);
Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018);
Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va. 2018);
Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio Mar.
6, 2018);
Gischel v. Univ. of Cincinnati, 302 F. Supp. 3d 961 (S.D. Ohio 2018);

14
Powell v. St. Joseph‘s Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa. February 16,
2018);
Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J. Jan. 17, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018);
Painter v. Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017);
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20,
2017);
Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d 386 (W.D.N.Y. Sept.
20, 2017);
Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 27 (N.D.
Ohio Sept. 1, 2017);
Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 3d 799, 817 (E.D. Pa. 2017);
Gulyas v. Appalachian St. Univ., 2017 U.S. Dist. LEXIS 137868 (W.D.N.C. Aug.
28, 2017);
Nokes v. Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25, 2017);
Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fl. July 20, 2017);
Tsuruta v. Augustana Univ., No. 4:15-cv-04150 (D.S.D. June 16, 2017); Doe v.
Univ. of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017);
Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017);
Doe v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017);
Doe v. Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017);
Neal v. Colo. St. Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16,
2017);
Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528 (S.D. Fl. Jan. 19, 2017);
Doe v. W. New England Univ., 228 F. Supp. 3d 154 (D. Mass. 2017);
Doe v. Alger, 228 F. Supp. 3d 713 (W.D. Va. 2016);
Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J. Nov.
17, 2016);
Doe v. Brown Univ., 210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016);
Ritter v. Okla. City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22,
2016);
Doe v. Weill Cornell Med. Coll. of Cornell Univ., No. 1:16-cv-03531 (S.D.N.Y.
May 20, 2016);
Doe v. Bd. of Regents of the Univ. Sys. Of Ga., No. 15- cv-04079 (N.D. Ga. April
19, 2016);
Doe v. George Mason Univ., No. 1:15-cv00209 (E.D. Va. Feb. 25, 2016);
Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24, 2016);
Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016);
Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016);
Marshall v. Indiana Univ., 170 F. Supp. 3d 1201 (S.D. Ind. 2016);
Doe v. Pa. St. Univ., No. 4:15-cv-02072 (M.D. Pa. Oct. 28, 2015);
Sterrett v. Cowan, 2015 U.S. Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015);
Doe v. Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept. 16, 2015);
Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md. August 21, 2015);
Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va.
Aug. 5, 2015);

15
 Tanyi v. Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C. July 22,
2015);
Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015);
King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075 (S.D. Ind. August 22,
2014);
Benning v. Corp. of Marlboro Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt. Aug.
5, 2014);
Harris v. St. Joseph‘s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13,
2014);
Wells v. Xavier Univ., 7 F. Supp. 3d 746 (S.D. Ohio 2014);
Doe v. Geo. Wash. Univ., No. 1:11-cv-00696 (April 8, 2011).

19. The tremendously damaging history of ―Notarios‖ representing immigrants before

the immigration courts provides a model for what happens when non-lawyers
represent vulnerable neophytes. The immigration practice also presents a solution
outside the scope of this comment: creating a certification scheme for the
respondents‘ advisors. Immigration law calls this a BIA Accredited
Representative (associated with a BIA accredited Organization) (see 8 CFR
292.2). Absent certification, non-legal agents appearing in immigration court
routinely ruin lives just as non-legal agents appearing at Title IX hearings
routinely ruin respondents‘ education. On ―Notarios‖ versus a BIA
Representative, see generally:

https://www.americanbar.org/content/dam/aba/administrative/immigration/fightno
tariofraud/mdvadc2.pdf

20. Whether having non-attorney agents appear to argue at a live Title IX hearing is
unethical or constitutes unauthorized practice of law remains a state-by-state
question.

――Practice of law‖ definitions are established by court rule in fifteen

jurisdictions, by statute in sixteen, through case law in twenty-one, and
through advisory opinions in three jurisdictions. Many jurisdictions have
definitions in more than one resource, such as Pennsylvania, which has
practice definitions in case law and advisory opinion.‖

See, American Bar Association Standing Committee on Client Protection 2015

Survey of Unlicensed Practice of Law Committees, available at:

https://www.americanbar.org/content/dam/aba/administrative/professional_respon
sibility/2015_upl_report_final.authcheckdam.pdf

For example, the Pennsylvania advisory opinion cited in the ABA‘s report seems
to be included in the Pennsylvania Bar Association‘s manual on what constitutes
unauthorized practice of law. This manual does not mention non-attorneys
appearing as agents at a live Title IX hearing. The report covers instances where

16
 accountants, notaries, divorce mediators, tax consultants and others do engage in
the unauthorized practice of law when they appear in front of a governmental
agency, on behalf of a client, and engage in the type of legal rule interpretation
that an agent engages in during a live Title IX hearing. In Pennsylvania that
unethical conduct also comes under statutory definition, 42 Pa. C.S.A. 2524. The
manual is available at:

https://www.pabar.org/public/committees/unautpra/Opinions/uplmanual.pdf

21. While this is my personal concern on how to perfect the justice of Title IX‘s Draft
Rules, the suggestion in this comment meets the Office of Management and
Budget‘s guidelines on regulatory analysis. First, the need for the school to pay
for lawyers for the complainant and the respondent passes cost-benefit analysis
because the current alternative—no school paid lawyers—completely obfuscates
the very concept that guaranteed the live hearing in the first place, namely, real
due process or fairness. Second, the need for the school to pay for lawyers for the
complainant and the respondent also passes threshold analysis because absent the
school‘s allocation of budget for these lawyers the whole rest of the school‘s
expenditure in Title IX implementation becomes a pointless waste that invites
litigation and re-traumatization. See, e.g., Office of Management and Budget,
Circular A-4 of September 17, 2003, available at:

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf

17