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Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations

Campus due process is a rapidly evolving area of the law. SAVE has conducted a detailed review of 175 decisions in favor of the accused student and identified the judicial language that pertains to each of the 27 major regulatory provisions contained in the 2020 Title IX regulation.

The Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation concludes that each of the 27 major regulatory provisions, listed at the bottom of this page, is consistent with at least one judicial decision. As of January 1, 2022, the following seven regulatory provisions had been affirmed by 25 or more court decisions:

1. Impartial Investigations (Section 106.45(b)(1)): 48 decisions
2. Bias Towards Complainant or Respondent (Section 106.45(b)(1)(iii)): 45 decisions
3. Institutional Sex Bias (Section 106.45): 43 decisions
4. Notice (Sections 106.45(b)(2)(i)(A), 106.45(b)(2)(i)(B), and 106.45(b)(5)(v)): 39 decisions
5. Cross Examination (Section 106.45(b)(6)(i)): 38 decisions
6. Evidence Evaluation (Section 106.45(b)(1)(ii)): 33 decisions
7. Access to Evidence (Sections 106.45(b)(5)(iii) and 106.45(b)(5)(vii)): 27 decisions

Judges now view constitutionally based due process protections as requisite to sexual misconduct proceedings in public schools. As Judge Robert Jonker recently noted in Munoz v. Michigan State University, “Everyone agrees that procedural due process is implicated when a public university imposes a suspension of this magnitude.”

In general, the decisions did not turn on subtle interpretations of nuanced legal precepts. Rather, they were based on judicial recognition that colleges are failing to observe the most fundamental notions of fairness, often so gross as to suggest that sex bias was the motivating factor.

An analysis of the 175 cases reveals the legal bases for these decisions were the following:

• • Title IX statutory law: 50%
  • Constitutional law (due process or equal protection): 32%
  • Contractual: 20%
  • Fundamental fairness: 10%
  • State law: 9%
  • Other legal basis: 8%

Among the cases, 27% of decisions cited two or more legal bases.

Analyses

Several analyses of the cases are available:

• Biased Investigations: 7 Appellate and 42 Trial Court Decisions Document Widespread Misconduct in Campus Investigations
• Sex Discrimination: 44 Judicial Decisions Have Documented Sex Bias in Campus Title IX Adjudications

State-Level Analyses:

• California: Ten California Universities Listed in the Kangaroo Court ‘Hall of Shame:’ USC Is the Worst Offender
• Massachusetts: Seven Massachusetts Universities Listed in the Kangaroo Court ‘Hall of Shame:’ U. Mass at Dartmouth the Worst Offender
• New York: 16 New York Colleges Now Listed in the Kangaroo Court ‘Hall of Shame.’ Syracuse U. is the Worst Offender 
• Ohio: OSU Leads as the Worst Offender in the Ohio Kangaroo Court ‘Hall of Shame’
• Pennsylvania: Penn State the Worst Offender Among Pennsylvania ‘Kangaroo Courts’
• Virginia: Washington & Lee the Worst Offender Among Virginia ‘Kangaroo Courts’

The Analysis is an indispensable resource to judges, attorneys, policy-makers, college administrators, and others.

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LISTING OF 27 REGULATORY PROVISIONS

1. Equitable Grievance Procedures — Section 106.8(b)
2. Institutional Sex Bias — Section 106.45
3. Definition of Sexual Harassment — Section 160.30
4. Formal Complaint — Section 160.30
5. Supportive Measures — Section 160.44(a)
6. Emergency Removals — Section 160.44(c)
7. Impartial Investigations — Section 106.45 (b)(1)
8. Evidence Evaluation — Section 160.45(b)(1)(ii)
9. Credibility Assessment — Section 106.45 (b)(1)(ii)
10. Bias Towards Complainant — Section 160.45(b)(1)(iii)
11. Standard of Evidence — Section 160.45(b)(1)(vii)
12. Appeals — Section 160.45(b)(1)(viii)
13. Notice — Sections 106.45(b)(2)(i)(A), 106.45(b)(2)(i)(B), and 106.45(b)(5)(v)
14. Burden of Proof and Evidence Collection — Section 160.45(b)(5)(i)
15. Access to Evidence — Section 160.45(b)(5)(iii)
16. Participation of Advisors — Section 106.45(b)(5)(iv)
17. Live Hearings — Section 106.45(b)(6)(i)
18. Cross Examination — Section 106.45(b)(6)(i)
19. Conflict of Interest – Single Investigation Model — Section 106.45(b)(7)(i)
20. Informal Resolution — Section 160.45(b)(9)
21. Training Materials — Section 106.45(b)(10)(i)(D)
22. Recordkeeping — Section 160.45(b)(10)(i)
23. Consent — 106.30(a)
24. Geographical/Programmatic Scope — Section 106.44(a)
25. Presumption of Innocence — Section 106.45(b)(1)(iv)
26. Equal Opportunity for Parties to Present Evidence — Section 106.45(b)(5)(ii)
27. Materially False Statements Made in Bad Faith — Section 106.71(b)(2)