New rule could change how PSU judges sexual misconduct
WILLIAMSPORT – The way institutions of higher learning like Penn State adjudicate Title IX sexual misconduct complaints could change if the U.S. Department of Education adopts a regulation about which it has received more than 100,000 comments.
If adopted, the regulation would require a live hearing at which each party through an adviser could ask questions of the other and witnesses.
Questioning could occur with the witness in a separate room with technology enabling the parties and decision maker to observe and hear it.
The lack of due process is the focus of two pending lawsuits in U.S. Middle District Court against Penn State over the method it uses to adjudicate sexual misconduct complaints.
The plaintiffs in both, identified only as John Doe, contend the Penn State process prevents them from questioning the accuser.
Centre County attorney Andrew Shubin, who represents the Does, supports the use of an adviser to ask questions.
He wrote in a recent filing in one of the cases that it provides the benefits of cross-examination while balancing the concerns of inflicting unnecessary trauma on the complainant through personal confrontation.
Penn State will not speculate on potential impacts of regulations or legislation under consideration, spokesperson Lisa Powers said.
The university’s position on Title IX changes is aligned with organizations within higher education that have expressed concerns with what has been described as a “one-size-fits-all approach,” she said.
One of the concerns stated in comments submitted to the Education Department is the regulation would not allow schools to have the flexibility to determine the best approach for their particular community.
Penn State utilizes an investigator to gather facts from the parties who have the opportunity to provide a written statement, names of witnesses and other information.
The investigator’s draft report is submitted to the parties, who have the opportunity to make a response before the final version is submitted to a Title IX panel for adjudication purposes.
Shubin contends that process delegates the neutral fact-finding role to an investigator, who decides what is relevant and appropriate.
The Education Department is reviewing the public comments received after the proposed regulation was published in November in the Federal Register, spokesman Jim Bradshaw said.
There is no time frame by which the review must be completed, he said.
The final rule that will be published in the Federal Register will specify any changes and include a detailed discussion of the comments received, he said.