Equal Punishment, Unequal Rights: Expanding Due Process Protections For Students in University Disciplinary Proceedings
Author’s Note: Medium includes footnotes in the total word count, which may result in an inaccurate estimated reading time. This comment was written in December of 2025 and may not reflect subsequent changes in the law. My views are my own and do not necessarily reflect the views of my employer.
Content notice: This comment discusses case law involving sexual assault allegations.
I. Introduction
While Title IX governs federally mandated procedures for addressing gender-based misconduct within the scope of education programs, university student conduct codes regulate all other forms of student discipline.[1] In August of 2020, the Department of Education (“DoEd”) revised Title IX regulations to provide stronger due process protections for accused students (“respondents”).[2] Respondents in both Title IX cases and student conduct cases can face a range of consequences from their disciplinary proceeding, including, but not limited to, suspension, expulsion, and separation from university housing.[3] Despite the similar stakes involved, the government does not regulate student conduct codes to ensure due process protections in the same way that it regulates Title IX.[4] This leaves respondents in student conduct proceedings at the mercy of a relatively unregulated process.
This comment will argue that the due process protections delineated in the 2020 Title IX regulations should extend to all student conduct proceedings, regardless of violation type (non-Title IX behavioral, academic, or residential) or potential sanction. Part I provides background on Title IX’s regulatory framework and its intersection with university disciplinary codes. Part II compares the procedural rights afforded to respondents under Title IX with those lacking in general student conduct proceedings. Part III analyzes case law and argues for the extension of Title IX due process protections to all university disciplinary contexts. Part IV concludes by discussing the implementation of regulatory reform; specifically, conditioning government funding to universities on adherence to student conduct procedures consistent with due process. If implemented, this proposal would ensure that all students are treated fairly before being deprived of educational opportunities.
II. Background
Part I traces Title IX’s statutory and regulatory history, contrasts it with the structure of university student conduct systems, and examines how this dual-track disciplinary model has produced inconsistent outcomes and lawsuits against universities.
A. Title Ix’s History and Evolution
Enacted as part of the Education Amendments of 1972, Title IX was designed to eliminate sex-based barriers in education by providing that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving [f]ederal financial assistance.”[5] Initially applied primarily to athletics and admissions, Title IX’s scope has since expanded through administrative regulations and judicial interpretation to include sexual harassment and sexual violence as forms of sex discrimination.[6] The DoEd’s Office for Civil Rights (“OCR”) enforces the statute.[7] In contrast, a university’s student code of conduct functions as a broader disciplinary framework governed by individual schools rather than the federal government.[8] It encompasses all categories of student misconduct — academic, behavioral, and residential — while Title IX represents only a subset of that framework, applying specifically to gender-based misconduct occurring within the scope of the university’s program.
In 2011, under the Obama presidential administration, the OCR issued a “Dear Colleague” letter that provided guidance on Title IX compliance.[9] These regulations faced substantial bipartisan criticism because of due process concerns for respondents.[10] For example, under these regulations, there was no requirement that the university provide the respondent with notice sufficient to prepare a response to the allegation at hand.[11] There was also a single-investigator model, in which one administrator could “act as detective, prosecutor, judge, and jury on a Title IX complaint.”[12] Most notably, respondents did not have the right to cross-examine their accusers or adverse witnesses.[13]
These guidelines resulted in “hundreds of lawsuits being filed in federal courts” by respondents against their universities for due process violations.[14] An educational consultant and fellow for the National Association of College and University Attorneys commented on this phenomenon:
“In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases. Something is going seriously wrong . . .” A 2017 white paper from the National Center for Higher Education Risk Management, which sells sexual assault investigation/adjudication/consulting services to schools across the country, similarly concluded that universities are “losing case after case in federal court on what should be very basic due process protections. Never before have colleges been losing more cases than they are winning, but that is the trend as we write this.”
In 2020, under the direction of Betsy DeVos (the former U.S. Secretary of Education), the DoEd adopted new Title IX regulations that improved due process for respondents.[16] These rules granted respondents a variety of procedural rights intended to ensure fairness in Title IX proceedings.[17] Among other changes, the regulations required that respondents receive ongoing notice sufficient to prepare a response to the allegations, and they eliminated the single-investigator model in favor of a more balanced adjudicatory process.[18] Further mandates included that decision-makers provide a written rationale explaining the outcome of each case, and that disciplinary hearings include all participating parties, including complainants and witnesses.[19] (Though, in practice, these live hearings mainly occur via videoconference so that complainants do not have to be in the same room as the alleged perpetrator).[20]
The regulations also established fairer standards for emergency removals; specifically, if a university wants to remove a respondent from campus before claim adjudication, it must perform an “individualized safety and risk analysis,” determine that the respondent is an “immediate” safety risk, and provide the respondent the opportunity to challenge its decision post-removal.[21] Prior to this update, universities could kick respondents off campus “as soon as a complaint was filed” without following these steps.[22]
The regulations also guaranteed the right to gather evidence, contact exculpatory witnesses (thus preventing universities from imposing de facto gag orders on respondents), and ensured that the university notify respondents that their advisor of choice may be an attorney.[23] Other protections included mandatory dismissal for lack of jurisdiction, (such as when alleged conduct occurs off campus without continuing on-campus effects), and providing the complainant with the autonomy to withdraw a complaint after filing it.[24]
Furthermore, hearings must be recorded or transcribed, and both parties must have access to Title IX training materials that the institution uses.[25] Additionally, respondents are entitled to a copy of the final investigation report at least ten days before the hearing, and written notice of hearing participants no fewer than five days in advance.[26] Most notably, however, the revised regulations provide respondents the right to cross-examine witnesses, including their accuser.[27] It further provides that, “[i]f a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility.”[28]
Although these Title IX regulations apply to both public and private institutions, the statute reaches private universities only to the extent that they receive federal financial assistance.[29] The DoEd’s OCR conditions federal funding on institutions’ adherence to Title IX.[30] Examples of federal funding forms include Pell Grants, Federal Work-Study funds, and research grants.[31] So even though private universities may not be directly bound by the Constitution’s Due Process Clause, they must still comply with Title IX procedure to continue receiving federal funds.[32] If the OCR finds a university in violation of the statute, it may initiate corrective action or, in extreme cases, recommend termination of federal funding.[33] This mechanism effectively extends Title IX’s procedural mandates into the private sector.
In 2024, the Biden presidential administration introduced a new set of Title IX regulations that tried to undo the 2020 revisions.[34] However, a federal court ruling vacated them less than six months after they went into effect.[35] In addition to this abrupt policy reversal, President Trump’s intention to transfer the DoEd’s federal authority to the state level increases the uncertainty surrounding the future of Title IX.[36] However, while debate about this statute continues, a parallel track is left unnoticed. While Title IX currently provides robust procedural protections, similarly situated students facing non–Title IX disciplinary charges often receive fewer rights, despite facing comparable sanctions.[37]
B. Inconsistent Due Process Protections: Comparing Title IX and Student Conduct Codes
In contrast to Title IX, student conduct hearings are not federally mandated to provide certain rights for respondents. Rather, they are mostly governed by institutional policy, which varies greatly among universities. For example, student conduct codes may expand a university‘s jurisdiction over students by governing off-campus or online incidents that do not have continuing effects on campus.[38] Furthermore, they may not necessarily provide the right to cross-examination through an advisor or attorney, live hearings, a copy of a recording or transcript of hearing(s), or access to administration’s training materials.[39]
Courts have long grappled with the question of what constitutes adequate due process for students facing disciplinary action at their schools. The following cases provide a historical overview of how due process has been balanced with other considerations, as well as a modern focus on the interpretation of Title IX law.[40] This issue invokes both a property interest in the respondent’s continued enrollment and a liberty interest in the respondent’s reputation.[41] The following body of precedent lays the doctrinal foundation for extending the due process protections recognized in the 2020 Title IX regulations to all student disciplinary actions.[42]
1. Mathews v. Eldridge (“Eldridge”)
In Eldridge, the Supreme Court established the modern balancing test for determining what procedural protections the Constitution’s Due Process Clause requires.[43] The case concerned the termination of Social Security disability benefits, but the Court’s analysis has since become the framework for evaluating due process in a wide range of administrative and quasi-adjudicatory settings, including, but not limited to, university discipline.[44] Justice Powell, writing for the Court, emphasized that due process is a flexible concept, not a rigid formula, and that the procedures required in any given context depend on a careful weighing of competing interests.[45] Specifically, the Court articulated three factors to guide that inquiry:
(1) the private interest that will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.
Applying that framework, the Court held that due process did not require an evidentiary hearing prior to the termination of disability benefits.[47] The Court reasoned that the recipient’s interest, while significant, was mitigated by the availability of retroactive relief if the termination was later found to be wrongful.[48] The Court also found that written medical reports provided a reliable evidentiary basis for decisions, and that requiring trial-type hearings before termination would impose substantial administrative costs.[49]
Doctrinally, Eldridge stands for the principle that procedural due process does not guarantee a particular set of procedures, but rather a fair decision-making process proportional to the stakes and risks involved. Thus, the Eldridge test provides the analytical foundation for evaluating fairness in contexts where a governmental entity seeks to deprive an individual of a significant interest.
2. Jane Doe v. Virginia Polytechnic Institute and State University (“Virginia Tech”)
In 2021, a female student expelled from Virginia Polytechnic Institute and State University (commonly known as “Virginia Tech”) sued the university, alleging violations of Title IX and the Fourteenth Amendment’s Due Process Clause.[50] The plaintiff, Jane Doe, faced an allegation from classmate Jill Roe that 1.) Doe sexually assaulted Roe at Roe’s off-campus apartment in September of 2020, and that 2.) Doe then proceeded to “stalk” Roe by signing up for university activities where Roe would be present.[51] In response to the 2020 Title IX regulations, Virginia Tech created a separate policy on “Harassment, Discrimination, and Sexual Assault” under their Student Conduct Code.[52] Virginia Tech clarified that Title IX would only apply to on-campus allegations, or off-campus allegations with continuing on-campus effects; all other allegations of gender-based misconduct would be adjudicated under the Student Conduct Code.[53]
Despite Roe alleging continuing on-campus effects (i.e., stalking), the Title IX Coordinator decided that Roe’s allegation would be adjudicated under the Student Conduct Code, rather than Title IX.[54] Doe’s complaint described this as a “scheme” where the university would have to provide “only the basic procedural guarantees under the Code of Conduct” rather than “the full panoply of rights under Title IX.”[55]
A month after Roe’s allegations, student Joy Smith submitted a Title IX complaint alleging that Doe sexually assaulted her in an on-campus dormitory in January of 2020.[56] Because Smith’s allegation involved an on-campus incident, it fell under the jurisdiction of Title IX policy.[57] However, the Title IX Investigator, Kristin Barnett, never made a separate report for Smith’s allegations; rather, the allegations were included in Roe’s report as “related conduct.”[58]
Neither Doe nor her attorney were permitted to cross-examine Roe at the ensuing Student Conduct hearing.[59] Although Virginia Tech assured Doe that the hearing would address only Roe’s claims and not Smith’s, Smith was permitted to speak as a character witness during the Student Conduct hearing by speaking about her own allegations.[60] Similarly, neither Doe nor her counsel were permitted to cross-examine Smith.[61] Virginia Tech ultimately found Doe “responsible” for rape and sexual battery, and “not responsible” for assault and gender-based stalking, and expelled Doe from the university.[62] Virginia Tech never scheduled a separate Title IX hearing to address Smith’s allegations.[63]
In her lawsuit, Doe argued that Title IX rights and regulations, including the right to cross-examination, should have applied to both cases, and that the cases should have been separated.[64] In 2022, Doe voluntarily dismissed the case after the District Court denied her motion to proceed under a pseudonym.[65] Thus, there is no public judicial opinion on whether Virginia Tech violated Title IX or the Due Process Clause in this case. However, in the landscape of modern Title IX law, it exemplifies the consequences of inconsistent policies.
3. Doe v. Baum (“Baum”)
In Baum, a male student sued the University of Michigan, alleging violations of his due process rights and Title IX.[66] The plaintiff, John Doe, was accused by a female classmate, Jane Roe, of sexual misconduct following a fraternity party in 2014.[67] The University of Michigan investigated the allegation and concluded that Roe’s account was more credible than Doe’s.[68] It discounted exculpatory witnesses who supported Doe’s version of events, suspecting bias because they were Doe’s fraternity brothers.[69] However, it did not discount Roe’s witnesses, who were Roe’s sorority sisters.[70] The investigative process did not include a hearing, cross-examination, or an opportunity for Doe to question Roe’s credibility directly.[71] The university ultimately found Doe responsible for sexual misconduct, and Doe withdrew in lieu of facing expulsion.[72]
Later, Doe filed suit in federal court, arguing that the university violated his due process rights by depriving him of a meaningful opportunity to challenge Roe’s credibility.[73] On appeal, the Court of Appeals for the Sixth Circuit reversed the district court’s dismissal of the case, holding that when a university’s disciplinary decision turns on the credibility of the complainant and the respondent, the Due Process Clause requires some form of cross-examination before a “neutral factfinder.”[74] The court emphasized that credibility disputes could not be resolved by the complainant providing written statements instead of being subject to cross-examination, because cross-examination allows the neutral factfinder to assess the witness’s demeanor.[75]
Furthermore, using the Eldridge balancing factors, the court determined that Doe’s interest in a fair hearing outweighed the administrative burden, if any, on the university to ensure fair hearings:[76]
. . . [s]tudents have a substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct . . . [t]he student may be forced to withdraw from his classes and move out of his university housing. His personal relationships might suffer. And he could face difficulty obtaining educational and employment opportunities down the road . . . [i]n contrast, providing Doe a hearing with the opportunity for cross-examination would have cost the university very little. As it turns out, the university already provides for a hearing with cross-examination in all misconduct cases other than those involving sexual assault. So the administration already has all the resources it needs to facilitate cross-examination and knows how to oversee the process. And, importantly, the university identifies no substantial burden that would be imposed on it if it were required to provide an opportunity for cross-examination . . .
Thus, the appellate court reversed the district court’s dismissal of Doe’s claim and remanded the case for further proceedings.[78]
4. Dixon v. Alabama (“Dixon”)
In Dixon, decided over sixty years ago, a group of six Alabama State College students were expelled after alleged participation in civil rights demonstrations, though the court noted that “[t]he misconduct for which the students were expelled has never been definitely specified.”[79] Although these protests were nonviolent, the State Board of Education concluded (based on reports from the governor, college president, and state investigators) that the expelled students were “ringleaders” whose conduct was “prejudicial to the school,” disruptive to campus operations, and likely to incite further unrest.[80] The Board issued expulsion letters to the students that specified no particular charges.[81] It did not provide the students with notice, an opportunity to be heard, or the ability to present witnesses or evidence before the decision was finalized.[82] The district court held that the students had no constitutional right to notice or a hearing, and that attendance at a public college was a privilege within the State Board’s discretion.[83]
On appeal, the Court of Appeals for the Fifth Circuit held that a public college, a governmental body, could not expel students without due process.[84] The court noted that what fairness requires depends on the interest affected, the manner of deprivation, reasons for the action, alternatives, and the balance of harms and benefits.[85] For public college expulsions, due process requires, at a minimum, notice (a statement of the specific charges and grounds that, if true, justify expulsion) and a hearing (an opportunity for the student to respond, present their side of the story, and offer exculpatory or mitigating witnesses/evidence).[86]
However, the court clarified that “[t]his is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college’s educational atmosphere and impractical to carry out.”[87] The court discussed how education is a vital interest that is necessary for livelihood, citizenship, and personal fulfillment, and how expulsion mid-term can effectively block transfer to other colleges and permanently damage educational opportunities.[88] Therefore, the court reversed the district court’s ruling and remanded the case for compliance with these standards.[89]
5. Goss v. Lopez (“Goss”)
Goss arose from a series of student disturbances in Ohio public schools during February and March of 1971.[90] Nine students were suspended for “up to ten days” under an Ohio statute that allowed principals to impose suspensions without any hearing.[91] Several of the suspensions at issue involved alleged disruptive conduct occurring directly in front of administrators (for example, students refusing orders to leave a school auditorium during a demonstration or physically interfering with police activities).[92] But other students, including Dwight Lopez (“Lopez”) and Betty Crome (“Crome”), were swept up in broad disciplinary responses without any individualized fact-finding.[93]
Even though Lopez claimed to be an innocent bystander, he was suspended after a cafeteria disturbance, along with roughly seventy-five other students.[94] Crome was arrested at a protest off of school grounds, released without charges, and suspended the next day.[95] In all cases, no hearing occurred either before or after suspension, and the school system had no formal procedures requiring principals to provide students with an opportunity to respond to allegations of disciplinary violations.[96]
The U.S. Supreme Court ultimately held that a student is entitled to a hearing before being suspended.[97] The Court reasons that students had a legitimate property interest in their education, and suspensions also implicated a liberty interest in reputation.[98] Therefore, students could not be deprived of those interests “absent fundamentally fair procedures.”[99] At a minimum, due process in these proceedings requires oral or written notice of the charges, explanation of evidence, and an opportunity for the student to respond.[100] Generally, notice and hearing should occur before the suspension.[101] However, in emergencies (i.e., when the student poses a danger or serious disruption to the school community), immediate removal is allowed, but notice and a hearing must follow “as soon as practicable.”[102]
The Court emphasized this did not require a full trial-type hearing (with counsel, witnesses, or cross-examination) for short suspensions.[103] Instead, due process in this context would be satisfied by an informal “give-and-take” between the student and disciplinarian to prevent unfair or mistaken decisions.[104] The Court distinguished between short suspensions and longer suspensions or expulsions, the latter of which may require more formal hearings.[105] The court distinguished this because brief disciplinary suspensions were so common that imposing “even truncated trial-type procedures” in those cases would overwhelm administration and distract from the disciplinary process’s educational value.[106]
Ultimately, the Supreme Court affirmed the district court’s judgment, holding that the students’ suspensions were unconstitutional because they occurred without any notice or hearing.[107] The Court also upheld the district court’s order that required the school district to expunge all suspension references from the students’ records.[108]
6. Khan v. Yale (“Khan”)
In 2015, Yale student Jane Doe filed a Title IX complaint against her classmate, Saifullah Khan (“Khan”), alleging that he sexually assaulted her at her on-campus residence.[109] After a Title IX hearing, Yale expelled Khan.[110] Khan later sued Doe for defamation and “tortious interference with business relations” based on the statements she made during the Title IX hearing.[111] The district court ruled that the Title IX hearing was quasi-judicial; therefore, Doe “enjoyed absolute immunity” for statements made within the disciplinary proceeding.[112]
On appeal, the central issue was whether disciplinary proceedings through Yale’s University-Wide Committee on Sexual Misconduct (UWC) provided adequate procedural safeguards to be considered quasi-judicial, which would entitle Doe to absolute immunity for her statements.[113] A proceeding is quasi-judicial only if it functions with judicial-like reliability and fundamental fairness, which are key concepts grounded in due process.[114] The court explained that due process principles, such as meaningful opportunities to challenge witnesses’ credibility, the assistance of counsel, and a reviewable record, are important factors to consider in this analysis.[115] Even though university disciplinary hearings are authorized by statute, authorization alone is not enough to be classified as such; the procedures must incorporate basic guarantees of fairness sufficient to ensure reliable fact-finding.[116]
Here, the court concluded that Yale’s UWC process lacked the hallmarks of fundamental fairness required of quasi-judicial bodies.[117] For example, Khan and his counsel were excluded from the room during the university panel’s questioning of Doe and only allowed to listen through audio.[118] They could not directly question Doe, observe her demeanor, or engage in real-time follow-up.[119] Submission of written questions was permitted; however, the panel could reject any of them at its sole discretion.[120] The court emphasized that confrontation and real-time cross-examination are essential due process tools for testing credibility, especially in sexual-misconduct cases.[121]
Furthermore, although parties in UWC proceedings could request witness testimony, the panel had complete discretion to deny witnesses, without standards guiding those decisions. Khan had no independent ability to present witnesses in his defense.[122] Advisors (including attorneys) were silenced: they could not speak, submit documents, object, examine witnesses, or otherwise participate meaningfully.[123] The court noted that when an individual faces reputational and educational consequences from a proceeding, active advocacy from counsel is an important due process safeguard, and reducing counsel to a passive observer undermines fairness.[124] Finally, although the UWC kept minutes of the hearing, it expressly omitted statements, testimony, and questions, and denied Khan’s request for a transcript or recording.[125] The court noted that without a record, meaningful appeal or external scrutiny is impossible, making it a key safeguard.[126]
While the court acknowledged the importance of encouraging candid participation in disciplinary proceedings, it emphasized that absolute immunity (which it referred to as “strong medicine”) is only justified where a proceeding mirrors judicial safeguards.[127] Public policy of encouraging alleged sexual assault victims to come forward cannot override the absence of basic fairness protections.[128] Because Khan’s UWC proceeding lacked essential procedural safeguards, the court held that it did not afford fundamental fairness to Khan and therefore, could not be recognized as quasi-judicial.[129] Without quasi-judicial status, participants, including Doe, were not entitled to absolute immunity for statements made during the proceeding.[130] Therefore, the court allowed the defamation suit against her to continue.[131]
III. Discussion
The cases surveyed in Part II show the evolution of due process standards for universities adjudicating student misconduct. Part III argues that the procedural protections guaranteed under the 2020 Title IX regulations (notice, live hearings, cross-examination, access to evidence, etc.) should apply to all university disciplinary proceedings, regardless of whether an allegation falls within Title IX jurisdiction. Applying the Eldridge balancing test, this Part demonstrates that: (1) the private interests implicated in both Title IX and non–Title IX cases are substantial and often indistinguishable; (2) the risk of erroneous deprivation increases dramatically when universities fail to use procedural safeguards outlined in the regulations; and (3) universities already possess the administrative infrastructure to implement these protections, significantly diminishing any claim of undue burden.
This Part then explains how the doctrinal principles from Virginia Tech, Baum, Dixon, Goss, Khan, and modern Title IX practice collectively support a unified procedural standard. It asserts that fundamentally, due process cannot, and should not, hinge on whether the alleged misconduct is categorized as sexual or nonsexual. The Constitution does not recognize such a distinction, and universities should not either.[132]
A. Eldridge Supports Greater Due Process Protections in University Disciplinary Proceedings
Those opposed to stronger due process protections at public universities may argue that they would impose a heavy administrative burden on universities (referring to the third factor in the Eldridge test). This assertion is misplaced for two reasons. First, unlike general student conduct codes, Title IX enforces jurisdictional limitations on what schools can discipline students for.[133] Specifically, Title IX does not provide schools with jurisdiction to adjudicate alleged misconduct that occurred off-campus and does not have continuing effects on campus.[134] If this limitation were extended to all alleged disciplinary violations, it would reduce the number of cases that schools have to adjudicate by mandating the dismissal of cases where schools lack jurisdiction. In this particular manner, applying Title IX-like protections to all disciplinary cases can actually decrease the amount of work that universities must do.
Second, through compliance with the 2020 Title IX regulations, schools have proven that they already possess the resources and oversight needed to implement more due process protections (for example, cross-examination). Citing Doe v. University of Cincinnati, Baum noted that a university does not carry a “significant administrative burden” to allow cross-examination when it already has cross-examination procedures in place for other cases.[135] To comply with the 2020 Title IX regulations, schools were required to provide respondents with the right to cross-examination, and they have done so ever since.[136] Following the reasoning in Baum, since universities have shown that they already have the resources and oversight to permit this due process protection, the administrative burden of extending such rights to other types of disciplinary proceedings would be minimal at most.
The private interest affected, another Eldridge factor, also supports greater procedural protections in this context.[137] A student’s interest in their education implicates both property and liberty interests.[138] As Dixon and Goss recognized, education is essential not only to economic opportunity, but also to a student’s reputation and personal development.[139] Courts therefore treat education as a weighty interest that warrants meaningful safeguards before deprivation.[140] Given these substantial consequences, the private interest at stake is significant.
Finally, the risk of erroneous deprivation is similarly substantial in the context of university discipline. As federal litigation shows, the risk of erroneous findings increases when institutions deny respondents meaningful notice and the opportunity for cross-examination, or rely on a single-investigator model.[141] Cross-examination, in particular, allows credibility determinations to be tested in real time and prevents disciplinary boards from relying on untested statements.[142] In contrast, minimal procedures heighten the likelihood of unfair or mistaken outcomes.[143] The procedural safeguards introduced in the 2020 Title IX regulations directly mitigate these risks.[144] Extending those same protections to non–Title IX cases would therefore materially reduce the chance of wrongful disciplinary sanctions.
Furthermore, in appropriately balancing the different factors under Eldridge, one must consider the power imbalance between universities and their students. Universities operate as large, bureaucratic entities with trained staff, in-house counsel, and established disciplinary infrastructure.[145] Meanwhile, college students — -typically young with little financial resources — often navigate these complex procedures with little to no legal representation or understanding of their rights.[146] This asymmetry amplifies the risk of erroneous deprivation, thus justifying some additional administrative obligations on institutions. Therefore, the Eldridge balancing test tilts in favor of stronger procedural protections because the state actor (the public university) possesses greater resources.
Moreover, the Eldridge framework supports greater procedural protections because modern university discipline, which is far from the informal, pedagogical process Goss envisioned over fifty years ago, now regularly involves adversarial determinations involving questions of credibility and quasi-criminal allegations.[147] Applying Eldridge to the university context, when credibility is central, additional safeguards materially reduce the risk of error.[148] Thus, the procedures established by the 2020 Title IX regulations should operate as the procedure for all university disciplinary actions.
As for private universities, even though the Constitution and the Eldridge framework do not technically bind them, courts frequently recognize the contractual nature of the student-university relationship and the accompanying code of conduct, which outlines expectations for both students and the university.[149] Implied in every contract is the covenant of good faith and fair dealing, which requires parties to act honestly and fairly and to refrain from undermining the contract’s benefits.[150] In the context of student discipline, this covenant can be invoked to argue that the university must provide adequate procedures to ensure fairness. For example, a disciplinary action conducted with a single investigator, without meaningful notice, and without a live hearing violates the covenant by arbitrarily depriving the student of the educational benefits promised under the “contract.” Courts have recognized that the principle of “basic fairness” can justify procedural safeguards beyond the literal text of a handbook, supporting an argument for enhanced fairness and reasonableness.[151]
Additionally, like public universities, private universities remain subject to federal Title IX regulations, which already impose significant procedural requirements for handling allegations of sexual misconduct.[152] As discussed below, the same procedural protections ought to apply to all disciplinary proceedings, because student conduct proceedings can have consequences as severe as those resulting from Title IX proceedings.
B. Virginia Tech: A Prime Example of Equal Punishment, Unequal Rights
Regardless of which set of regulations (Student Conduct or Title IX) should have applied to the allegations against Jane Doe, one must wonder why the two processes are so different in the first place. In both Title IX and student conduct proceedings, consequences of university separation (suspension or expulsion) can include academic transcript notation, loss of future earnings, graduation delay, loss of housing, and effects on immigration status.[153] Furthermore, a record of suspension or expulsion on a transcript can make it very difficult for a student to attend any other postsecondary institution.[154]
Although the most discussed consequences of university disciplinary proceedings include suspension and expulsion, ANY sanction for a disciplinary violation can negatively impact respondents. Consequences not unique to suspension or expulsion may include a permanent disciplinary record, mandatory disclosures to other educational institutions (affecting admission), loss of scholarship and financial aid, restrictions on campus involvement, reputational stigma, and barriers to professional licensing.[155] In sum, both Title IX cases and non-Title IX cases can result in similar, disastrous consequences for respondents. Therefore, it logically follows that both types of disciplinary cases ought to have the same due process protections implemented. However, current federal law treats those accused of on-campus sexual misconduct as more deserving of due process than those accused of non-sexual misconduct or off-campus sexual misconduct.
The Virginia Tech case illustrates a deeper structural problem: universities can choose which procedural universe governs a case merely by assigning allegations to Title IX or to their individualized student conduct code.[156] This creates an incentive to route difficult or credibility-sensitive allegations, including allegations that resemble Title IX violations but are framed as non-Title IX, into a less procedurally robust process.[157] The blending of Roe’s off-campus allegations and Smith’s on-campus allegations shows how easily a school can circumvent due process.[158] Jane Doe was expelled through a process that lacked the very protections that federal law demanded under Title IX, not because the allegations were materially different, but because the university chose a different procedural track.[159] Virginia Tech therefore demonstrates the danger of maintaining dual systems: when consequences are the same but procedures diverge, due process becomes a matter of administrative preference.
C. Dixon: A Floor, Not a Ceiling
Dixon was a turning point in due process case law, but over sixty years later, its limits ought to be acknowledged. The court held only that students facing expulsion must receive notice of the charges and an opportunity to be heard.[160] It rejected the need for a “full-dress judicial hearing” on the grounds that such procedures would be impractical and disruptive to campus life.[161] However, Dixon was decided in 1961, when campuses lacked modern adjudicatory infrastructure, student misconduct cases were far simpler, and universities were not routinely resolving quasi-criminal claims.[162]
Live hearings and cross-examination, which Dixon viewed as “impractical” in 1961, are now commonplace, already required in Title IX cases, and described as “a bedrock principle of American jurisprudence.”[163] As later cases recognized, when credibility is at stake, cross-examination is essential to ensuring reliability.[164] Modern administrative capacity undermines Dixon’s claim that such hearings would be too burdensome on universities.[165] Therefore, Dixon should be understood as establishing the floor, not the ceiling, for due process in higher education. Dixon’s minimal requirements cannot — and should not — define the scope of due process in the twenty-first century.
D. Goss: Foundational, But Different
Similar to Dixon, Goss sets a floor, not a ceiling. Goss involved short suspensions of K-12 students.[166] It did not involve multi-semester suspensions, expulsion, or transcript notations.[167] The minimal procedures that the Court outlined were more defensible in this context because, not only were short suspensions common, but the educational stakes for K–12 students differed significantly from the stakes for university students.[168] In contrast to K-12 discipline, university disciplinary findings can derail careers, prevent graduate school admission or transfer to a different institution, trigger immigration consequences, and permanently stigmatize students.[169] Stronger procedural rights are necessary in the university context because the stakes are immeasurably higher.
Goss expressly reserved more formal safeguards for situations involving greater consequences or disputed facts.[170] University misconduct cases, especially those involving allegations of violence or harassment, squarely implicate the heightened interest that Goss contemplated, rather than the “informal” context of K-12 discipline.[171] Goss therefore supports, rather than constrains, the argument for uniform Title IX-like protections across all university disciplinary systems. If Goss set the floor for what due process minimally requires, even for a brief high school suspension, it logically cannot set the ceiling for university proceedings that involve life-altering consequences.
E. Analyzing Khan: Effect of this Proposal on Complainants in the Disciplinary Process
While this comment proposes extending Title IX due process protections to other university disciplinary hearings, many do not agree with the 2020 Title IX regulations to begin with.[172] Other comments particularly scrutinize the cross-examination requirement, arguing that it can retraumatize good-faith Title IX complainants.[173] While this is an understandable and laudable concern, this is mitigated by limitations and guidelines on what questions Title IX advisors are permitted to ask, analogous to rape shield rules under the Federal Rules of Evidence.[174] Institutions also tend to have rules about preventing advisors from conducting cross-examination or otherwise participating in the proceedings in a harmful manner.[175] However, getting rid of this due process protection entirely is an extreme solution that increases the likelihood of unfairness to respondents.[176]
Furthermore, not only would more due process protections in student conduct proceedings benefit respondents, but they may also benefit complainants. Specifically, due process protections that increase a proceeding’s likelihood of being deemed “quasi-judicial” decrease the likelihood of the complainant’s civil liability for statements made in those proceedings.[177] Khan discussed factors in deeming a disciplinary hearing “quasi-judicial,” which the UWC hearing failed to fulfill:
[t]he UWC proceeding failed (1) to require complainants to testify under oath or to subject them to explicit and meaningful penalties for untruthful statements, (2) to provide Khan, or his counsel, the meaningful opportunity to cross-examine adverse witnesses in real time, (3) to provide parties a reasonable opportunity to call witnesses to testify, (4) to afford Khan the opportunity to have the active assistance of counsel during the UWC hearing, and (5) to provide Khan any record or transcript of the proceeding that would assist him in obtaining adequate review of the UWC decision or to expose the legitimacy or fairness of the proceeding to public scrutiny. Although we do not maintain that all of these procedural features are required for our recognition of a quasi-judicial proceeding . . . the collective absence of such features militates against a determination that the proceeding had adequate safeguards to ensure reliability and promote fundamental fairness.
In Khan, Title IX complainant Jane Doe did not receive immunity for her statements because the UWC hearing lacked these adequate due process features.[179] This demonstrates that complainants actually benefit when the system is fairer to respondents, because courts treat due process guarantees as evidence that a proceeding produces reliable, trustworthy results, which is a doctrinal justification for granting participants absolute immunity.[180] In contrast, courts are reluctant to apply absolute immunity to proceedings that lack the hallmarks of judicial reliability.[181] Without these protections, complainants face the risk of litigation, which may deter good-faith reports.[182] A common, erroneous sentiment is that more due process for respondents harms complainants’ interests.[183] But on the immunity question, the opposite is ironically true.
F. A Student Need Not Risk Removal from Campus to Receive Due Process
Procedural safeguards ought to be applied uniformly, regardless of whether the respondent is facing removal from campus (via suspension, expulsion, or housing separation). This contrasts with some policies that only provide ideal due process protections for those facing separation from their university.[184] As previously discussed, respondents can face serious consequences even when a disciplinary case does not carry the risk of removal from campus. Non-removal sanctions can still result in a permanent disciplinary record, mandatory disclosures to other educational institutions (affecting admission), restrictions on campus involvement, loss of scholarships or financial aid, reputational stigma, and barriers to professional licensing.[185]
Under the Eldridge balancing test, these consequences implicate both liberty and property interests because they affect future educational and employment opportunities.[186] The risk of error is just as high in non-removal cases. Credibility disputes, conflicting statements, and evidentiary gaps do not become unproblematic just because the sanction does not rise to the level of removal from campus. If the consequence can meaningfully alter a student’s academic or professional trajectory, appropriate procedural protections should follow.
IV. Solution: Condition Government Funding to Public and Private Universities on the Expansion of Due Process Protections
In March of 2025, President Trump issued a controversial executive order to eliminate the federal DoEd and return its power to state governments.[187] In July of 2025, the Supreme Court greenlighted Trump’s efforts to continue dismantling the DoEd.[188] Thus, future enforcement of Title IX regulations will likely come from state governments, not the federal government. However, this matter is still ongoing and subject to litigation.[189]
This anticipated decentralization shows the need for consistent due process protections across postsecondary institutions. Several law review journal articles have advocated for increased rights for both complainants and respondents in Title IX.[190] However, if universities can circumvent these protections by adjudicating allegations through a different policy, it would limit the practical effect of such advocacy.[191] To remedy this disparity, student conduct codes should be reformed to mirror Title IX regulations.
Universities should be required to dismiss cases that do not occur on campus or have continuing effects on campus, notify students that their advisor of choice can be an attorney, set identical standards for emergency removal, and provide a written rationale for decisions on findings and sanctions. Students should have the right to ongoing notice sufficient to prepare a response to allegations, access to the investigation report at least ten days before a disciplinary hearing, gather evidence and exculpatory witnesses, cross-examination and a live hearing (with statements from parties not subject to cross-examination being struck from the record), a copy of a transcript or recording of hearing(s), and access to student conduct training materials. The single investigator model must be eliminated, and complainants should have the autonomy to withdraw their complaint after filing if they wish to do so.
This comment proposes a conditional funding model linking eligibility for state government funding to institutional adoption of a model student conduct code across all disciplinary proceedings, regardless of type or potential sanction. Applicable funds include, but are not limited to, Pell grants, Work-Study funds, and research grants. These regulations could be distributed through state higher-education coordinating boards or Boards of Regents, which already promulgate statewide standards for accreditation, reporting, and programmatic compliance.[192] Such agencies could issue uniform guidance, publish the model code, and monitor institutional adherence as a condition of annual appropriations. Should the transfer of power from federal to state government be halted during these uncertain political times, this comment suggests conditioning federal government funding to schools on adopting a model student conduct code. By aligning student conduct procedures with Title IX’s established due process protections, the government can promote fairness, enhance institutional legitimacy, and reduce litigation across both public and private universi
[1] See U.S. Dep’t of Educ., Title IX and Sex Discrimination, [https://perma.cc/2LMB-YA2T] (Apr. 11, 2025) (discussing how prohibitions on sex discrimination include prohibitions of sexual misconduct). In this comment, “Student Conduct” encompasses the adjudication of all allegations of student misconduct that do not fall under Title IX’s scope. Since each university’s student conduct code is individualized, it is nearly impossible to cite uniform standards. Thus, this paper will focus on one public university (Northern Kentucky University, a local school) and one private university (Yale University, the defendant in Khan v. Yale Univ., 295 A.3d 855 (2023)) as case examples.
[2] See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,026 (May 19, 2020) (summarizing the DoEd’s revisions to Title IX regulations).
[3] See Sexual Harassment Policy, N. Ky. Univ. Title IX (last visited Nov. 21, 2025), [https://perma.cc/8AME-4A33] (listing possible sanctions in Title IX proceedings); see also UWC Procedures, Yale Univ. (Aug. 1, 2025), [https://perma.cc/SMK8-U3SK] (listing possible sanctions in Title IX proceedings); see also Community Standards & Student Rights, N. Ky. Univ. Student Affs. (last approved June 15, 2022), [https://perma.cc/2SV4-NQ3W] (listing possible sanctions in Student Conduct proceedings); see also Yale College Undergraduate Regulations 2025–2026, Yale Univ. (last visited Nov. 21, 2025), [https://perma.cc/R86R-69G3](listing possible sanctions in Student Conduct proceedings).
[4] See The 14th Amendment and the Evolution of Title IX, Admin. Office of the U.S. Cts., [https://perma.cc/XTA8-E9NH] (discussing the federal government’s role in enforcing Title IX law); see also College Students Often Caught Off Guard by College Code of Conduct, AW L. Educ. Rts. L. Firm (last visited Oct. 31, 2025), [https://perma.cc/53ZN-9ABF] (describing a student conduct code as a contract between a university and its students, rather than a product of federal law).
[5] 20 U.S.C. § 1681.
[6]See U.S. Dep’t of Educ., supra note 1 (“[e]xamples of the types of discrimination that are covered under Title IX include but are not limited to: sex-based harassment; sexual violence . . .”).
[7] See 34 C.F.R. § 106.1 (guidance from the DoEd); see also How the Office for Civil Rights Handles Complaints, U.S. Dep’t of Educ. (Apr. 28, 2025), [https://perma.cc/2VLH-T4NG] (explaining enforcement of Title IX law).
[8] See N. Ky. Univ. Student Affs., Community Standards & Student Rights, supra note 3; see also Yale Univ., Yale College Undergraduate Regulations, supra note 3.
[9] U.S. Dep’t of Educ., Office for C.R., Dear Colleague Letter: Sexual Violence (Apr. 4, 2011).
[10] See Campus Sexual Harassment and the New Title IX Regulations, Hacker Murphy LLP (Jan. 15, 2021), [https://perma.cc/2T6B-VEAX].
[11] See Dillon PLLC’s Guide to Current Title IX Regulations, Dillon PLLC (2025), [https://perma.cc/4V2J-JEAE].
[12] Justin Dillon Quoted in The Free Press, Dillon PLLC (Apr. 24, 2024), [https://perma.cc/VND7-24WV].
[13] See Washington Examiner Staff, The Future of Title IX: A Conversation with Justin Dillon, Wash. Exam’r (June 15, 2021), [https://perma.cc/5SLR-ZGHP].
[14] Hacker Murphy LLP, supra note 10.
[15] Samantha Harris & K.C. Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49, 64–65 (2019).
[16] See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,026 (May 19, 2020) (explaining that the DoEd intended the 2020 regulations to strengthen due process protections for respondents.)
[17] See id.
[18] See 34 C.F.R. § 106.45(b)(2) (notice requirement), (7)(i) (requiring a decision-maker separate from the Title IX Coordinator or Investigator).
[19] See id. § 106.45(b)(7)(ii)(E) (written rationale requirement), 6(i) (providing respondents the right to a live hearing).
[20] See WHAT IS A “LIVE HEARING” IN A TITLE IX CASE?, Marcilliat & Mills PLLC (last visited Sep. 18, 2025), [https://perma.cc/K5UP-GT4T] (explaining what a live hearing is); see also Title IX Defense Lawyers, How Do Title IX Hearings Work?, Title IX Def. Law.s (last visited Sep. 18, 2025), [https://perma.cc/59K5-6F55] (noting the trend of Title IX live hearings occurring virtually via Zoom); see also Doe v. Baum, 903 F.3d 575, 583 (6th Cir. 2018), citing Doe v. Univ. of Cincinnati, 872 F.3d 393, 402–03, 406 (6th Cir. 2017) (noting that this requirement can be facilitated through modern technology, including, for example, by allowing a witness to be questioned via Skype “without physical presence.”). For rationale behind allowing an alleged victim to be in a different room than their alleged perpetrator, see generally Md. v. Craig, 497 U.S. 836 (1990) (though note that Craig involved a criminal case in which the accuser was a child, not a civil or administrative case in which the accuser was an adult).
[21] See 34 C.F.R. § 106.44(c) (outlining emergency removal procedures).
[22] Dillon PLLC’s Guide to Current Title IX Regulations, Dillon PLLC (2025), [https://perma.cc/4V2J-JEAE](“[w]e once handled a case where an international student was summarily suspended before his investigation had even started, thus causing him to lose his visa and be forced to return to his home country. When we pointed out that this was a . . . due process violation, the school caved and let him back in (and ultimately cleared him of all charges). But it shouldn’t have taken a law firm to do that.”).
[23] See id. (explaining that universities cannot restrict parties’ ability to gather evidence); see also Pilar Morin & Jenny Denny, Revised Special Bulletin: U.S. Department of Education Releases Final Title IX Rule, LCW Special Bull. (May 12, 2020), https://perma.cc/Q5HL-BSFM (explaining that universities cannot restrict parties’ ability to gather evidence); see also C.F.R. § 106.45(b)(5)(iv) (notifying respondents that their advisor may be an attorney).
[24] See 34 C.F.R. § 106.45(b)(3).
[25] See id § 106.45(b)(6)(i) (recording and transcript requirement), (10)(i)(D) (training materials requirement).
[26] See id. § 106.45(b)(5)(v)-(vii). However, whether this is measured in business days or calendar days is at the university’s discretion. See 10 Day Period for Review of Evidence (Response 5/22/2020), Ass’n of Title IX Adm’rs (May 22, 2020), [https://perma.cc/D5QZ-YZCB].
[27] See 34 C.F.R. § 106.45(b)(6)(i).
[28] Id.
[29] See K. Robert Toy, Does Title IX Apply to Private Schools?, Toy & Assocs. (Oct. 28, 2024), [https://perma.cc/4ASZ-TAEM].
[30] See id.
[31] See Student Aid Index (SAI) and Pell Grant Eligibility, U.S. Dep’t of Educ. (2024–25), [https://perma.cc/E3V9-BVPE] (discussing Pell Grants as a form of federal aid); see also Federal Work-Study jobs help students earn money to pay for college or career school, U.S. Dep’t of Educ. (last visited Oct. 18, 2025), [https://perma.cc/5TB7-8VCX] (discussing Federal Work Study as a form of federal funding) see also Jason Cohn, How Much Federal Funding Do Colleges and Universities Receive?, Urb. Inst. (May 8, 2025), [https://perma.cc/9LLF-5M34] (discussing how the federal government funds student research).
[32] See An Overview: The Private University and Due Process, Duke L.J., 795 (1970) (“[i]n affording students the constitutional protection of due process, courts have generally differentiated between those students who attend public colleges and universities and those who attend private, but otherwise similar, institutions.’ Since public universities are . . . instruments of the state, their students must be granted that degree of due process required by the [F]ourteenth [A]mendment. In dealing with private universities, on the other hand, courts have refused to apply constitutional standards because of a lack of state action.”).
[33] See How the Office for Civil Rights Handles Complaints, U.S. Dep’t of Educ. (Apr. 28, 2025), [https://perma.cc/2DXH-AWC3].
[34] See Dee Spagnuolo, Elizabeth Wingfield & Travis W. Watson, Federal Court Strikes Down Title IX Rule, Ballard Spahr (Jan. 13, 2025), [https://perma.cc/2DXH-AWC3].
[35] See id. (explaining impact of Tennessee v. Cardona, 762 F. Supp. 3d 615 (E.D. Ky. 2025)).
[36] See Exec. Order No. ____, Improving Education Outcomes by Empowering Parents, States, and Communities, 90 Fed. Reg. ___ (Mar. 20, 2025).
[37] See Community Standards & Student Rights, N. Ky. Univ. Student Affs. (last approved June 15, 2022), [https://perma.cc/2SV4-NQ3W] (describing procedures and possible sanctions in Student Conduct proceedings); see also Yale College Undergraduate Regulations 2025–2026, Yale Univ. (last visited Nov. 21, 2025), [https://perma.cc/R86R-69G3] (describing procedures and possible sanctions in Student Conduct proceedings).
[38] See N. Ky. Univ. Student Affs., Community Standards & Student Rights, supra note 3; see also Yale Univ., Yale College Undergraduate Regulations, supra note 3.
[39]See N. Ky. Univ. Student Affs., Community Standards & Student Rights, supra note 3; see also Yale Univ., Yale College Undergraduate Regulations, supra note 3 (although Yale requires a secretary to keep minutes of the hearing, it does not require that a copy be provided to the respondent).
[40] See, e.g., Goss v. Lopez, 419 U.S. 565, 567 (1975).
[41] See, e.g., id. (“the Court ruled that the students had protected liberty interests in a public education that could not be taken away by suspension without the minimal procedural safeguards of notice and an opportunity to be heard . . .”).
[42] See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,026 (May 19, 2020) (summarizing the DoEd’s revisions to Title IX regulations).
[43] Mathews v. Eldridge, 424 U.S. 319, 323 (1976) (“[r]esolution of the issue here involving the constitutional sufficiency of administrative procedures . . . requires consideration of three factors: (1) the private interest that will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.”).
[44] See id. (introducing the case’s focus on the termination of Social Security disability benefits); see also, e.g., U.S. Const. Annotated, Amendment V: “Mathews Test”, LII, Cornell L. Sch. (last visited Oct. 25, 2025), [https://perma.cc/5BRG-GU56] (describing Eldridge as the “current prevailing standard” for the dictates of due process); see also, e.g., Due process at public universities, Found. for Individual Rts. & Expression (last visited Oct. 25, 2025), [https://perma.cc/48Q5-H8SA] (discussing Eldridge’s application to disciplinary hearings).
[45] See Eldridge, 424 U.S. at 334.
[46] Id. at 323.
[47] See id. at 349.
[48] See id. at 340.
[49] See id. at 344–45 (discussing written medical reports), 348 (discussing administrative costs).
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[50] See Doe v. Va. Polytechnic Inst. & State Univ., Civil Action №7:21-cv-00306, 2022 U.S. Dist. LEXIS 2784, at *5–6 (W.D. Va. Jan. 6, 2022) (hereinafter Va. Tech) (discussing expulsion and causes of action). Other listed defendants are Kathryn Polidoro (university’s director of Title IX Compliance) and Timothy Sands (university’s President). See id. at 1.
[51] See id. at 2 (discussing sexual assault allegation); see also Complaint ¶¶ 59–60, Va. Tech (discussing stalking allegation). Although Roe is identified by her real name in the complaint, the court later granted her a pseudonym.
[52] Va. Tech, 2022 U.S. Dist. LEXIS 2784, at *3–4 (quoting the complaint).
[53] See id.
[54] See id.
[55] Complaint ¶ 73 Va. Tech.
[56] See id. ¶ 79. Although Smith is identified by her real name in the complaint, the court later granted her a pseudonym.
[57] See 34 C.F.R. § 106.45(b)(3).
[58] Va. Tech, 2022 U.S. Dist. LEXIS 2784, at *4.
[59] See id. at 5.
[60] See id.
[61] See id.
[62] See id.
[63] See Complaint ¶ 117 Va. Tech.
[64] See Va. Tech, 2022 U.S. Dist. LEXIS 2784, at *6.
[65] See Notice of Voluntary Dismissal, Va. Tech; see also id. at *13 (denying plaintiff’s motion to proceed by pseudonym).
[66] See Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018).
[67] See id. at 578–79.
[68] See id. at 580.
[69] See id. at 586.
[70] See id.
[71] See id. at 581.
[72] See id. at 580–582.
[73] See id.
[74] Id. at 578.
[75] See id. at 582.
[76] See id.
[77] Id. (citing Doe v. Miami Univ., 882 F.3d 579, 600 (6th Cir. 2018); Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 406 (6th Cir. 2017) (“noting that a university does not bear a significant administrative burden when it already has procedures in place to accommodate cross-examination.”); Doe v. Cummins, 662 F. App’x 437, 446 (6th Cir. 2016)).
[78] See id. at 588.
[79] Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 151–53 (5th Cir. 1961).
[80] Id. at 153–54, 164.
[81] See id. at 154.
[82] See id.
[83] See id. at 155.
[84] See id. at 151 (reversing and remanding district court decision, which ruled in favor of the university, due to due process concerns), 155 (describing a public college as a “governmental body . . .”).
[85] See id. at 155 (citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Felix, F., concurring)). Note that Dixon was decided fifteen years before Eldridge.
[86] See id. at 151 (discussing student’s right to present their side of the story), 159 (discussing student’s right to present exculpatory witnesses).
[87] Id. at 159.
[88] See id. at 157 (“[w]ithout sufficient education the plaintiffs would not be able to earn an adequate livelihood, to enjoy life to the fullest, or to fulfill as completely as possible the duties and responsibilities of good citizens.”).
[89] See id.
[90] Goss v. Lopez, 419 U.S. 565, 569 (1975).
[91] Id. at 568. But note the absence of school files that make it difficult to confirm the suspension length of the ninth named plaintiff, Carl Smith. See id. at 571.
[92] See id. at 569–70.
[93] See id. at 570–71.
[94] See id.
[95] See id.
[96] See id.
[97] See id. at 567 (“the Court ruled that the students had protected liberty interests in a public education that could not be taken away by suspension without the minimal procedural safeguards of notice and an opportunity to be heard . . .”).
[98]See id.
[99] Id.
[100] See id.
[101] See id.
[102] Id.
[103] See id. at 583.
[104] Id. at 584.
[105] See id.
[106] Id. at 583.
[107] See id. at 584.
[108] See id. at 572.
[109] See Khan v. Yale Univ., 295 A.3d 855, 864 (2023).
[110] See id. at 861.
[111] Id.
[112] Id.
[113] See id. at 861–62.
[114] See id. at 875 (determining that Yale’s UWC proceeding did not meet this standard).
[115] See id. at 879.
[116] See id. at 861.
[117] See id. at 878–79 (“Khan asserts that the UWC proceeding should not be recognized as quasi-judicial because the proceeding lacked judicial-like procedures and other indicia of reliability. Doe responds that the proceeding provided more than the minimum procedural safeguards that fundamental fairness requires. We agree with Khan . . .”).
[118] See id. at 861.
[119] See id. at 881 (discussing lack of opportunity to ask “legitimate questions” in “real time” during cross-examination).
[120] See id.
[121] See id. (quoting Doe v. Allee, 242 Cal. Rptr. 3d 109, 113 (Ct. App. 2019)).
[122] See id.
[123] See id. at 882.
[124] See id. at 879–882 (listing the “active assistance of counsel” as a safeguard of fundamental fairness).
[125] See id. at 883 (“Although the UWC procedures require that the secretary of the UWC keep minutes from the meeting and a record of all the actions and reports filed, they explicitly provide that ‘[t]he minutes do not record statements, testimony, or questions.’”).
[126] See id. at 879.
[127] See id. at 877.
[128] See id.
[129] See id. at 879.
[130] See id.
[131] See id. at 889. Note that after this article was written, the court dismissed the lawsuit for reasons unrelated to the topic of immunity. See Saifullah Khan v. Yale Univ., No. 3:19-cv-01966 (KAD), 2026 LX 150449 (D. Conn. Mar. 27, 2026) (alleging that Khan acted in bad faith throughout the litigation process).
[132] See generally U.S. Const. amend. XIV, § 1 (requiring due process before depriving a person of liberty or property, without regard to whether the basis for deprivation is sexual in nature).
[133] See 34 C.F.R. § 106.45(b)(3).
[134] See id.
[135] Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018), citing Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 406 (6th Cir. 2017).
[136] See 34 C.F.R. § 106.45(b)(6)(i) (requiring universities to provide Title IX respondents the right to cross-examine witnesses); see also Dee Spagnuolo, Elizabeth Wingfield & Travis W. Watson, Federal Court Strikes Down Title IX Rule, Ballard Spahr (Jan. 13, 2025), [https://perma.cc/2DXH-AWC3] (explaining how Tennessee v. Cardona, 762 F. Supp. 3d 615 (E.D. Ky. 2025) vacated the 2024 Title IX regulations that would have ended this requirement).
[137] See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (listing the private interest affected as a factor).
[138] See Goss v. Lopez, 419 U.S. 565, 567 (1975).
[139] Dixon, 294 F.2d at 159 (describing education as necessary for livelihood, citizenship, and personal fulfillment); Goss, 419 U.S. at 567.
[140] See Dixon, 294 F.2d at 159 (describing education as necessary for livelihood, citizenship, and personal fulfillment); see also Goss, 419 U.S. at 567.
[141] See Campus Sexual Harassment and the New Title IX Regulations, Hacker Murphy LLP (Jan. 15, 2021), [https://perma.cc/2T6B-VEAX] (discussing lawsuits under Obama-era Title IX regulations).
[142] See Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018); see also Doe v. Univ. of Cincinnati, 872 F.3d 393, 401 (6th Cir. 2017) (noting that cross-examination decreases the likelihood of erroneous deprivation under Eldridge).
[143] See Justin Dillon Quoted in The Free Press, Dillon PLLC (Apr. 24, 2024), [https://perma.cc/VND7-24WV] (describing a single-investigator model as leading “to more erroneous outcomes, and more lawsuits.”).
[144] See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,026 (May 19, 2020) (explaining that the DoEd aimed for the 2020 regulations to strengthen due process protections for respondents).
[145] See Can Universities Conduct Disciplinary Hearings Without Allowing Legal Representation?, Allen Harris L. (last visited Oct. 18, 2025), [https://perma.cc/GDW4-6N49] (“[u]niversity disciplinary boards are familiar with their policies and procedures, while a student facing allegations may feel confused, intimidated, or uncertain about what to say.”); see also Ashley Mowreader, The Hidden Curriculum of Student Conduct Proceedings, Inside Higher Ed (July 9, 2025), [https://perma.cc/J9BP-LMPL] (describing established disciplinary infrastructure as “bureaucratic”); see also Recommendations for Improving Campus Student Conduct Processes for Gender-Based Violence, A.B.A. Comm’n on domestic & sexual violence 12, 14 (2019) (assuming trained staff and in-house counsel as professional norms).
[146] See Melanie Hanson, College Enrollment & Student Demographic Statistics, Educ. Data Initiative (last updated Mar. 17, 2025), [https://perma.cc/M5JP-FCL5] (noting that more than half of college students are twenty-one or younger as of 2024); see also Bill Debaun, New Survey Data: Financial Realities Undermine Student Success, Nat’l Coll. Attainment Network (May 28, 2025), [https://perma.cc/C4FB-XMW2] (discussing financial status of college students). Due to varying state laws regarding what can be published about student conduct proceedings, it is difficult to find a nationwide statistic on how many respondents are represented by counsel. But see Annual Report on Student Discipline Pursuant to KRS 164.372, N. Ky. Univ. (2023), [https://perma.cc/7MB9-9TTU] (noting that less than 1% of respondents in the disciplinary process had legal representation). See also Allen Harris L., supra note 145 (“[u]niversity disciplinary boards are familiar with their policies and procedures, while a student facing allegations may feel confused, intimidated, or uncertain about what to say.”).
[147] See Goss v. Lopez, 419 U.S. 565, 583 (1975) (describing the suspension process as “part of the teaching process.”); see also U.S. Dep’t of Educ., Title IX and Sex Discrimination, [https://perma.cc/2LMB-YA2T] (Apr. 11, 2025) (discussing how Title IX governs allegations of “sexual violence”); see generally Baum, 903 F.3d (identifying credibility as a central issue); see generally Khan v. Yale Univ., 347 Conn. 1 (2023) (identifying credibility as a central issue).
[148] See Campus Sexual Harassment and the New Title IX Regulations, Hacker Murphy LLP (Jan. 15, 2021), [https://perma.cc/2T6B-VEAX] (discussing lawsuits under Obama-era Title IX regulations).
[149] See, e.g., An Overview: The Private University and Due Process, Duke L.J., 795 (1970) (“[i]n affording students the constitutional protection of due process, courts have generally differentiated between those students who attend public colleges and universities and those who attend private, but otherwise similar, institutions.’ Since public universities are . . . instruments of the state, their students must be granted that degree of due process required by the [F]ourteenth [A]mendment. In dealing with private universities, on the other hand, courts have refused to apply constitutional standards because of a lack of state action. Thus, the procedural safeguards afforded a student by law at a private university generally are limited . . . by the application of . . . a contractual theory . . .”).
[150] See Restatement (Second) of Conts. § 205 (A.L.I. 1981).
[151] Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 572 (D. Mass. 2016) (“[a]lthough the relationship between the university and its students is essentially contractual, the university’s disciplinary actions may also be reviewed by the courts to determine whether it provided ‘basic fairness’ to the student.”). Note that Brandeis University is a private university.
[152] See K. Robert Toy, Does Title IX Apply to Private Schools?, Toy & Assocs. (Oct. 28, 2024), [https://perma.cc/4ASZ-TAEM].
[153] See Cynthia Ward, Restoring Fairness to Campus Sex Tribunals, 85 Tenn. L. Rev. 1073, 1095 (2018) (discussing transcript notation and impacts); see also Consequences of Suspension, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/LN77-QVBX] (discussing impact on university housing); see also Consequences of Expulsion, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/NT9V-58LH] (discussing impact on university housing); see also Complaint ¶ 126, Doe v. Va. Polytechnic Inst. & State Univ., Civil Action №7:21-cv-00306 (W.D. Va. May 17, 2021) (discussing loss of future earnings resulting from expulsion); see also Punishments and Defenses Relating to Law School Misconduct Charges, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/Q24S-JXPC] (discussing graduation delay); see also International Student Issues, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/C5BQ-3ZPD] (discussing immigration consequences). Note that this is not an exhaustive list of consequences.
[154] See Ward, supra note 153, at 1095 (quoting a feminist law professor, “[t]he idea that what we’re talking about here is just a civil sanction, the equivalent of money damages, is unreal to me. When we expel or suspend a student and put that on the transcript, it’s going to be very hard for that person to go to any other institution of higher education.”).
[155] See Campus Disciplinary Records and How They Can Affect College and University Students, Lento L. Firm (Dec. 27, 2016), [https://perma.cc/4NLM-4HYY] (discussing mark on disciplinary record and mandatory disclosures); see also Kentucky College Code of Conduct Student Defense Advisor, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/PLC9-WYEG] (discussing impact on scholarship opportunities); see also College Disciplinary Hearings, Stephen G. Rodriguez & Partners (May 2, 2025), [https://perma.cc/L9T6-C5AQ] (discussing how disciplinary action can derail a student’s career and be reviewed by graduate schools or transfer schools); see also Cnty. Office L., What is Disciplinary Probation? (YouTube, Sep. 1, 2025), [https://perma.cc/2R6T-CMLS] (discussing probation limits); see also, e.g., Bar Application Character and Fitness Questions, Judge David L. Bazelon Ctr. for Mental Health L. (Feb. 2019), [https://perma.cc/8HFW-5KF4] (several states ask those who wish to take its Bar Exam if they have ever been disciplined by any college or university).
[156] Complaint ¶ 73, Va. Tech (“[i]n other words, Virginia Tech created a scheme to determine whether a student like Ms. Doe would receive the full panoply of rights under Title IX that the Department of Education had enacted the previous summer — or, if the complaint fell outside the ‘scope of Title IX’ and therefore the student would receive only the basic procedural guarantees under the Code of Conduct.”)
[157] See id.
[158]See id. ¶ 121 (“Ms. Polidoro folded Ms. [Smith’s] complaint into Ms. [Roe’s] case, thereby denying Ms. Doe any of the benefits of the new Title IX laws that would have helped her as an accused student in campus sexual assault cases.”).
[159] See id. ¶ 50.
[160] See Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 151 (5th Cir. 1961).
[161] Id. at 159.
[162] Title IX was not enacted until 1972, eleven years after Dixon was decided.
[163] Dixon, 294 F.2d at 159; see also 34 C.F.R. § 106.45(b)(6)(i) (requiring cross-examinations and live hearings in Title IX cases); Washington Examiner Staff, The Future of Title IX: A Conversation with Justin Dillon, Wash. Exam’r (June 15, 2021), [https://perma.cc/5SLR-ZGHP] (“[2011 Title IX] standards deprived the accused of a bedrock principle of American jurisprudence — the right to cross-examine one’s accuser and the right to due process.”).
[164] See Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018); see Khan v. Yale Univ., 295 A.3d 855, 881 (2023) (quoting Doe v. Allee, 242 Cal. Rptr. 3d 109, 113 (Ct. App. 2019)).
[165] See Baum, 903 F.3d at 582, citing Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 406 (6th Cir. 2017) (“noting that a university does not bear a significant administrative burden when it already has procedures in place to accommodate cross-examination.”).
[166] See generally Goss v. Lopez, 419 U.S. 565 (1975).
[167] Note that Goss referenced Ohio law that provided extra procedural protections to students facing expulsion, as opposed to short-term suspension. See id. at 567.
[168] See id. at 583 (“[b]rief disciplinary suspensions are almost countless.”)
[169] See College Disciplinary Hearings, Stephen G. Rodriguez & Partners (May 2, 2025), [https://perma.cc/L9T6-C5AQ] (discussing how disciplinary action can derail a student’s career and be reviewed by graduate schools); see also International Student Issues, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/C5BQ-3ZPD] (discussing immigration consequences); see also, e.g., Complaint ¶ 126, Doe v. Va. Polytechnic Inst. & State Univ., Civil Action №7:21-cv-00306 (W.D. Va. May 17, 2021) (discussing “loss of reputation and good name” as a result of adverse finding in Student Conduct proceeding).
[170] Goss, 419 U.S. at 584.
[171] Id.; see also Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018) (describing heightened stakes in adjudications of sexual violence); see also Va. Tech, 2022 U.S. Dist. LEXIS 2784, at *3–4 (quoting the complaint, referring to harassment policy that led to plaintiff’s expulsion).
[172] See Elizabeth Munoz-Smith, Article: Toward an Absolute Privilege from Defamation for Statements made in Campus Sexual Misconduct Proceedings, 58 U. Mich. J.L. Reform 193, 216 (2024).
[173] See id.
[174] See 34 C.F.R. § 106.45(b)(6)(i)-(ii) (providing a “rape shield” rule that prohibits irrelevant questions about complainant’s sexual history); cf. Fed. R. Evid. 412 (prohibiting questions about alleged victims’ sexual history in civil and criminal cases, with limited exceptions).
[175] See, e.g., Advisors in the Title IX Process, N. Ky. Univ. (last visited Nov. 21, 2025), [https://perma.cc/5EJ4-6NJH] (prohibiting advisors from asking questions in an “abusive, intimidating, or disrespectful manner.”); see also UWC Procedures, Yale Univ. (Aug. 1, 2025), [https://perma.cc/SMK8-U3SK] (outlining decorum rules for advisors).
[176] See Adam Jacob Wolkoff, A Privilege to Speak Without Fear: Defamation Claims in Higher Education, 46 J.C. & U.L. 121, 161 (2022) (“[t]he heightened level of due process afforded to parties within those proceedings mitigates the risk that the parties will not have a fair hearing on the merits on campus.”)
[177] See id. at 154 (“the more trial-like the proceedings, the more likely that absolute privilege will apply.”); see also Khan v. Yale Univ., 295 A.3d 855, 879 (2023).
[178] Khan, 295 A.3d at 879.
[179] See id.
[180] See id. at 861 (discussing reliability of results), 877 (citing Priore v. Haig, 280 A.3d 402 (2022) while discussing public policy considerations for granting absolute immunity).
[181] See id. at 879.
[182] See id. at 863 (acknowledging the possibility that “perpetrators of sexual assault” may “silence their accusers by using the threat of civil litigation . . .”).
[183] See, e.g., Epstein, Ray, How New Title IX Rules Leave Sexual Assault Survivors in the Lurch, The Nation (Apr. 25, 2024), [https://perma.cc/548R-GXPM] (arguing that both cross-examination and the risk of civil liability are harmful to complainants; therefore, complainants should have the same rights that they would have in a courtroom, but respondents should not).
[184] See, e.g., Ky. H.R. 290, 2022 Reg. Sess. (Ky. 2022) (identifying due process requirements specifically for university students facing “a suspension of 3 days or more, expulsion, or termination of student housing . . .”).
[185] See Campus Disciplinary Records and How They Can Affect College and University Students, Lento L. Firm (Dec. 27, 2016), [https://perma.cc/4NLM-4HYY] (discussing mark on disciplinary record and mandatory disclosures); see also Kentucky College Code of Conduct Student Defense Advisor, Lento L. Firm (last visited Oct. 10, 2025), [https://perma.cc/PLC9-WYEG] (discussing impact on scholarship opportunities); see also College Disciplinary Hearings, Stephen G. Rodriguez & Partners (May 2, 2025), [https://perma.cc/L9T6-C5AQ] (discussing how disciplinary action can derail a student’s career and be reviewed by graduate schools or transfer schools); see also Cnty. Office L., What is Disciplinary Probation? (YouTube, Sep. 1, 2025), [https://perma.cc/2R6T-CMLS] (discussing probation limits); see also, e.g., Bar Application Character and Fitness Questions, Judge David L. Bazelon Ctr. for Mental Health L. (Feb. 2019), [https://perma.cc/8HFW-5KF4] (several states ask those who wish to take its Bar Exam if they have ever been disciplined by any college or university).
[186]See Stephen G. Rodriguez & Partners, supra note 185 (discussing how disciplinary action can derail a student’s career and be reviewed by graduate schools or transfer schools); see also Campus Disciplinary Records, supra note 185 (discussing mark on disciplinary record and mandatory disclosures).
[187] See Exec. Order No. ____, Improving Education Outcomes by Empowering Parents, States, and Communities, 90 Fed. Reg. ___ (Mar. 20, 2025).
[188] See Supreme Court says Trump’s efforts to close the Education Department can continue, Nat’l Pub. Radio (July 14, 2025), [https://perma.cc/5XFK-B8T5].
[189] See id. (“Monday’s ruling is not the final word, as the case continues to work its way through the lower courts.”)
[190] For an article advocating for complainant rights, see, e.g., Elizabeth Munoz-Smith, Toward an Absolute Privilege from Defamation for Statements made in Campus Sexual Misconduct Proceedings, 58 U. Mich. J.L. Reform 193 (2024). For an article discussing respondent rights, see, e.g., Kristi Patrickus, A Higher Education Due Process Primer: Resolving Procedural Due Process Inconsistencies in Favor of Greater Procedural Protections, 47 J.C. & U.L 141, 164 (2022). For a discussion of both complainant and respondent rights, see, e.g., Adam Jacob Wolkoff, A Privilege to Speak Without Fear: Defamation Claims in Higher Education, 46 J.C. & U.L. 121, 154 (2022).
[191] See generally Doe v. Va. Polytechnic Inst. & State Univ., Civil Action №7:21-cv-00306, 2022 U.S. Dist. LEXIS 2784 (W.D. Va. Jan. 6, 2022).
[192] See Mary Fulton, An Analysis of State Postsecondary Governance Structures, Educ. Comm’n of the States 2 (Oct. 7, 2019), [https://perma.cc/JX5K-TZXJ] (describing role of state higher-education coordinating boards); see also A.C. McGuinness, Jr., State Higher Education Structures and Institutional Accreditation: Background Information for Consideration of Alternatives for the Future, Nat’l Ctr. for Higher Educ. Mgmt. Sys. 3 (Mar. 2021), [https://perma.cc/2A9E-PP3Y] (describing role of Board of Regents).
