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Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

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Rebecca Stewart: 513-479-3335


Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

WASHINGTON / September 1, 2021 – A recent decision from the District Court of Massachusetts highlights a growing trend of judges to disallow qualified immunity defenses in Title IX lawsuits. The decision sounds a warning to campus officials who have been advised to curtail cross-examination procedures. The consulting firm TNG recently recommended to Title IX personnel: “If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions.” (1) [emphasis added]

The Doe v. Lincoln-Sudbury Region et al lawsuit arose from an allegation of sexual misconduct in the high school setting. In this case, the initial Title IX investigation reached inconclusive results. But rather than finding the accused student “not responsible,” school administrators arbitrarily retracted the initial letter and replaced it with a finding of guilt (2).

In last Friday’s decision, Judge Dennis Saylor began his analysis with a history lesson: “More than thirty years ago, the First Circuit found that it had ‘long been “clearly established” that due process safeguards must be afforded’ when ‘persons are deprived of property interests.’”

The Court then rejected the school officials’ claim of qualified immunity: “Accordingly, defendants’ motion to dismiss Count 1 will be denied to the extent that it seeks dismissal of the §1983 claim as to Wong, Ramos, and Elenbaas in their individual capacities.” Wong is the district superintendent, and Ramos and Elenbaas are co-chairs of the school’s Title IX program.

In 2014, District Judge William Martinez first affirmed the necessity of cross-examination in the Title IX context. He highlighted that “the only evidence presented by the university was the unsigned, two-page list of events,” and that the complainant was not present at the hearing (3).

Over the ensuing years, a total of nine appellate court and 23 trial court decisions have been issued that affirm the essential role of cross-examination in campus hearings (4). Some of the opinions use emphatic and obligatory language. In Doe v. Westmont College, for example, California Appeals Court Judge Martin Tangeman ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (5) [emphasis added]

None of the judicial rulings to date contemplate the possibility that a school official might actually advise a complainant to “just refuse to answer all cross-examination questions.”


  3. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014).
  5. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019).