Videoconference Is a “Live Hearing:” Court Upholds Title IX Hearing in the Pandemic Era

By: Kim Pacelli, M.Ed., J.D., Partner, TNG

Doe v. Transylvania Univ., No. CV 5:20-145-DCR, 2020 WL 1860696 (E.D. Ky. Apr. 13, 2020) (denying temporary restraining order).


Transylvania University, like most colleges and universities, has taken its Title IX processes into the virtual realm. When the COVID-19 pandemic upended campus life in March, the Title IX office was already in the late stages of a Title IX investigation that was headed to a hearing. When the hearing was scheduled for a videoconference on April 15th, the responding party marched into court, arguing that a video hearing violated university policy and his “due process” rights, seeking an injunction to stop the hearing from occurring. This was one of the first known legal challenges to videoconference hearings during the pandemic.

Facts and Background

The allegations against John Doe arose from a student-on-student encounter. Jane Doe reported that John undressed himself and forcefully kissed, grabbed, bit, and spanked her, and pinned her to a couch. She was able to push him away and exit the room. An anonymous RA made a report to Transylvania the next day. Jane met with the Title IX Coordinator days later and filed a formal complaint. Interim measures were informed by the fact that John was a responding party in another non-consensual contact investigation and included, among other things, prohibition from the residence halls and relocation to an off-campus apartment.

John told a very different story. He initially alleged that Jane started kissing him without consent before he asked her to leave. John retained counsel to advise him during the investigation. At some point mid-investigation, John began to assert that Jane’s alleged actions were “unwanted.” Then, at the pre-hearing conference, John contended that the university was obliged to investigate Jane and filed a formal complaint against her. Different investigators determined that there was insufficient evidence to support John’s allegations. Due to the pandemic, the university scheduled a videoconference hearing for April 15th. Under Transylvania’s procedures, John was permitted to call witnesses, present evidence, make opening and closing statements, and challenge evidence. John’s attorney demanded full cross-examination, and Transylvania agreed to procedural modifications to align with OCR’s proposed regulations. Unsatisfied, John sought a temporary restraining order to prevent the hearing.

The Court’s Analysis

A temporary restraining order (TRO) directs a party to do something specific temporarily while litigation gets underway, akin to interim measures in Title IX processes. Courts typically weigh four factors: 1) whether the plaintiff is likely to succeed on the merits of the underlying claim, 2) whether the plaintiff will suffer irreparable harm in the absence of the TRO, 3) whether the TRO will cause substantial harm to others, and 4) whether the TRO is in the public’s interest.

On the first factor, the court considered Doe’s claims that the hearing would violate his “due process” rights and run contrary to university policy. Transylvania is a private institution, therefore “due process” rights are not implicated. John pressed an argument that his “right” to cross-examination was impeded because university policy called for a “live hearing” rather than one done through videoconferencing.

The court was not swayed by John’s argument that OCR’s proposed regulations created some entitlement for a specific procedure. The court was also not persuaded that using a videoconference violated the university’s policy requirement of a “live hearing.” The court noted that the policy did not define “live” to require everyone to be present in the same room. The court then noted that the Sixth Circuit had implicitly endorsed videoconferencing for disciplinary hearings. See, e.g., Doe v. Baum, 903 F.3d 757, 583 (6th Cir. 2018); Doe v. Univ. of Cincinnati, 872 F.3d. 393, 406 (6th Cir. 2017). The court noted that the parties would be present on the same videoconference, would be able to question witnesses, and conduct the cross-examination in real time. Furthermore, the panel would still evaluate credibility – critical in a word-against-word case.

The court demonstrated considerable interest in security and privacy considerations inherent with conducting disciplinary hearings through video conferencing. Transylvania planned to use Google Meet, which the court considered to be sufficiently and appropriately secure and private both during and after the hearing.

The remaining factors all tipped in Transylvania’s favor, as well. John could not claim a likelihood of success on his gender discrimination claims because he was not yet found responsible in the university’s process. Furthermore, the university “has a substantial interest in the fair, prompt, and accurate resolution of disciplinary matters without due interference from courts[,]” as well as “a strong interest in maintaining a campus free of sexual harassment and sexual assault.” (p. 12). Jane, too, has an interest in prompt resolution of her complaint. The court further suggested that “an indefinite postponement … [until] the pandemic ends could likely result in separate litigation based on claims of deliberate indifference…” Id.

Takeaways and Lessons

  • The judge invested substantial energy reviewing and evaluating the privacy and security of Transylvania’s planned technology, and especially given the privacy concerns that were arising with other common platforms.
  • Despite moving the hearing to videoconference, Transylvania otherwise just followed its process. The court found the university’s notice, information sharing, and other critical pre-hearing procedural requirements all sufficient under its policy.
  • It helped immensely that Transylvania had developed a protocol for virtual hearings, demonstrating that it was well positioned to run the process thoughtfully and effectively.