Friday, July 31, 2020
Greetings from a long-absent contributor to this blog. My name is Ben Trachtenberg, and I teach Evidence at the University of Missouri. Because my recent scholarship has concerned education law, I have not posted here in some time.
Now, however, my interest in higher education law has brought me back to my evidence roots, and I have a new article that discusses the new rules of evidence that colleges and universities must use in Title IX hearings. These rules are included in revised regulations (effective August 2020) from the U.S. Department of Education. Under these rules, hearing officers at campus tribunals must rule on issues of relevance, application of the rape shield, and legal privileges. Institutions are required to ensure that their hearing officers are trained in this law.
In my new article, "Hiring and Training Competent Title IX Hearing Officers," I suggest how campus leaders can obey these new requirements. My main suggestion is that institutions should use external hearing officers, instead of asking faculty and staff with no legal training to become knowledgeable about complex evidence rules. In addition, I propose that institutions separate the role of hearing officer (i.e., judge) from that of the decision-makers (i.e., jurors) who determine the ultimate result. This would allow external experts to run the hearing while retaining internal authority over decisions.
I'd welcome any feedback on the article. The pre-publication draft is online now. The paper version will appear in the Missouri Law Review in winter 2020-2021.
In a subsequent post, I will dig into some of the new evidence rules that colleges and universities must use in their Title IX hearings.