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June 11, 2021

Conrad O’Brien’s Written Comment and Live Testimony to U.S. Department of Education’s Office for Civil Rights

The team at Conrad O’Brien submitted a comment to the Department of Education’s Office for Civil Rights (OCR) as part of its Title IX Public Hearing (Ensuring Fair and Reliable Campus Disciplinary Proceedings In Cases Involving Alleged Sexual Misconduct).

Our written comment urged OCR not to rollback the significant procedural protections outlined in the 2020 Title IX regulations, as those are a critical effort to align Title IX regulatory requirements with fundamental principles of justice, with court precedent requiring fair procedures for those accused of serious misconduct, and with Title IX’s proscription of gender discrimination. Per the 2020 regulations, an educational institution’s treatment of a complainant or a respondent in connection with a sexual harassment complaint could constitute discrimination on the basis of sex.

“We believe both complainants and respondents have a right to be heard. Neither has a right to be automatically believed. A society dedicated to equal justice under law cannot function if we abandon basic fairness and due process principles in reaction to particular types of cases.”

Patricia Hamill, Co-Chair of the Title IX and Campus Discipline Practice

Our team advocates that certain key procedural protections established under the 2020 Title IX regulations must be preserved. These protections — required under our nation’s system of law for fair and reliable determinations —include:

  • Notice
  • Impartial decisionmakers
  • Thorough, fair investigations where exculpatory and inculpatory evidence is gathered and considered
  • A meaningful opportunity to be heard, which includes the opportunity for both parties to present their positions as well as confront testimony against them in a live hearing)
  • A presumption that the respondent is not responsible unless the applicable standard of proof is met
  • Decisions based on the facts of the particular case

Our written comments were accepted as part of the hearings conducted by the Department of Education’s efforts pursuant to President Biden’s Executive Order, which called for a comprehensive review of the current Title IX regulations.

Live Testimony from Patricia Hamill

Co-Chair of the Title IX and Campus Discipline practice and partner Patricia Hamill testified virtually on June 8, 2021 before the OCR at the Title IX public hearing.

Patricia testified “out of concern that the Department will roll back many of the gains made and protections implemented by the 2020 regulations,” and went on to emphasize that the “basic fairness requirements” should be retained. She stressed that parties in Title IX proceedings must receive full and fair notice, a thorough and unbiased investigation, and access to impartial decisionmakers.

Patricia also discussed the need to preserve live hearings and cross-examination during Title IX proceedings, stating she strongly supported allowing party advisors to conduct fair, respectful cross-examinations.

Patricia explained that the exclusion of prior statements by parties who do not submit to cross-examination contradicts established evidentiary rules, and decisionmakers should be allowed to rely on either party’s admissions and statements against interest.

Read Patricia’s full testimony here.