Kimberly Lau Testifies Before the Department of Education During Title IX Hearing

06/11/2021

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On Friday, June 11, 2021, Title IX and College Discipline practice leader Kimberly Lau testified before the U.S. Department of Education's Office for Civil Rights as part of the week-long public hearing on Title IX.

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Testimony Transcript

Good Morning, my name is Kimberly Lau and I’m a partner and chair of the Title IX/College Discipline Practice of NYC-based law firm, Warshaw Burstein. I have represented over 200 students at both public and private schools across the country at all levels, regarding all types of discipline, including Title IX matters. I’ve also successfully litigated cases that have helped shape the legal standards that address Title IX liability. It’s important to note that I represent both complainants and respondents, so I am well-versed in the unique perspectives of each.

While the 2020 Regulations are not perfect, in my experience they represent a much closer version of “fairness” that balances the interests of all parties involved as compared to previous policies.

The 2020 Regulations give complainants more control over the process than they ever had before. Under the 2020 Regulations, complainants may decide to file a formal complaint, or request supportive measures, or potentially engage in mediation; whatever they decide is best for themselves.

For respondents, there were crucial changes made as well. Because I am a lawyer, it may come as no surprise that I strongly believe in the value of “live hearings and cross-examination” as they comprise the basic foundation of due process. Allowing due process should not be seen as a negative, rather it ensures the integrity of the results no matter who prevails.

In the past, some schools used “investigator models” in lieu of hearings, and courts have struck this down repeatedly as being inherently unfair. Live hearings guarantee that a separate fact-finder is able to fully assess credibility with live testimony, and will allow a proper forum for cross-examination.

There is no question that cross-examination is an important fact-finding tool. I agree that parties should not be required or allowed to ask questions of each other directly. But the right to cross-examination has been heralded by courts across the country as a cornerstone of “basic fairness.”

While there are many positives to the 2020 regulations, the following areas may be improved.

Regarding off-campus jurisdiction, having “dual-track” disciplinary systems for sexual assaults that take place off-campus is confusing and will create an end-run around the robust rights available to students charged under a Title IX process. If a school is going to exercise jurisdiction to the offense, the nature of the offense should control not where the offense took place.

Finally, regarding the issue of retaliation, currently, students are not prohibited from speaking publicly about their Title IX matter. But some students have abused this right by utilizing social media to publicly harass, and shame. The consequences can be deadly, including attempted suicides. There is a clear line between freedom of speech and cyber-bullying and harassment. Schools need the tools under Title IX to appropriately address these matters.

Thank you.