We recently launched a multi-part series where we are providing a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations soon, remember that the 2020 regulations are still in effect and will be for some time. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.

Today, we’re focusing our spotlight on the Title IX Decision-Maker. With the live hearing requirement for colleges and universities under the 2020 regulations, Decision-Makers play key roles in the formal grievance and appeals processes. The regulations outline three stages in which Decision-Makers play a primary role: the live hearing, the written determination, and the appeal. (Decision-Makers have slightly different responsibilities in the K-12 process, which we will also cover below.)

It’s important to note that Decision-Makers cannot serve as Investigators, nor can the Title IX Coordinator serve as a Decision-Maker. Furthermore, a Decision-Maker in the live hearing process cannot also serve as a Decision-Maker if there is an appeal. The current regulations explicitly prohibit the doubling of these roles, which is something you will need to keep in mind if you have a small Title IX team. Know, however, that folks on your Title IX team may play different roles in different cases, so it is a best practice to cross-train the members of your team. As always, feel free to reach out to us with any questions if you would like support with training or anything else related to the roles and responsibilities of your team.

Training Requirements for Decision-Makers

First things first: what are Decision-Makers required to know? The 2020 regulations mandate that Decision-Makers receive training on the following topics:

• The definition of sexual harassment;
• The scope of the institution’s educational programs or activities;
• The process of conducting an investigation and grievance process, including hearings, appeals, and informal resolution processes;
• How to serve impartially and avoid conflicts of interest and bias towards complainants or respondents;
• Issues of relevance in order to make determinations regarding admissibility of questions at the live hearing and evidence from the investigation; and
• Technology to be used at a live hearing.

While most of these topics overlap with the training requirements of other members on the Title IX team, Decision-Makers have the additional requirement of being trained in all forms of technology used to facilitate the live hearing, which is required for higher education institutions. This particular provision seems even more prescient given that the regulations coincided with the onset of the pandemic, forcing colleges and universities to scramble to learn how to hold live hearings in a virtual setting. While many institutions are transitioning back to campus, it is still critical that your Decision-Makers are fully trained in the use of any video conferencing platform, recording software, or other technology that may be used during live hearings, whether on- or off-campus.

Decision-Makers and the Live Hearing

Under the 2020 regulations, Decision-Makers oversee the process of cross-examination during live hearings and make rulings on relevance. (While the regulations do not require more than one Decision-Maker, you may want to have a panel of two or more Decision-Makers to ensure greater fairness and reliability. We will be referring to “Decision-Makers” in the plural below.)

With Decision-Makers presiding over live hearings, the process can seem quite legalistic. However, Decision-Makers should be aware that the Title IX hearing process operates by very different rules than the courtroom, especially when it comes to rules of evidence. It’s worth reviewing the major steps of the hearing in some detail.

Cross-examination. During a live hearing, Decision-Makers must allow each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those that challenge the party or witness’s credibility. The cross-examination must take place “directly, orally, and in real time.” Note that parties must be represented by an advisor of their choice and cannot ask questions of the other party directly.

We recommend that Decision-Makers carefully plan for a live hearing by reading through the investigative report, noting any evidence that should be presented, preparing a script for the hearing, and coming up with a checklist of questions for each party and witness. Decision-Makers can pose questions to parties and witnesses during the hearing (provided the questions are relevant), so having a prepared checklist makes it easier to follow up on issues that may need further clarification.

Ruling on relevance. Decision-Makers must rule whether a party’s question is relevant before the other party or witness is allowed to answer. In practice, this means Decision-Makers may likely need to state “relevant” or “not relevant” immediately after each question asked. If a question is deemed not relevant, Decision-Makers must explain their rationale for the record.

The regulations do not define “relevance” per se; however, the regulations do forbid certain types of questions and evidence from being admitted to the record. So what exactly is not relevant under Title IX? One major category relates to the Complainant’s past sexual history. Applying rape shield protections from criminal law to Title IX, the regulations state that any questions and evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless they are 1) offered to prove that someone other than the Respondent committed the conduct, or 2) offered to prove consent, in the case of specific incidents of the Complainant’s prior sexual behavior with the Respondent.

In addition, the regulations exclude from consideration any evidence or questions that deal with, or request, information protected by a legally recognized privilege (e.g., medical or mental health treatment records), unless the party to whom the information belongs waives the privilege.

Above all, Decision-Makers must serve as impartial arbiters until the conclusion of the live hearing process. You may recall last year’s federal court decision in Victim Rights Law Center v. Cardona, which led to the demise of the so-called Suppression Rule prohibiting Decision-Makers from relying on any statement of a party or witness who did not submit to cross-examination at the live hearing (you can read our post on the Cardona decision here). While the Suppression Rule is no longer enforced by OCR, it’s worth remembering that the rest of the provision still stands—namely, that a Decision-Maker cannot draw inferences based solely on a party or witness’s failure to appear or refusal to answer any questions at the live hearing.

Issuing the Written Determination

After coordinating the live hearing and weighing all relevant evidence, Decision-Makers must make a determination regarding responsibility. According to the regulations, Decision-Makers must issue a written determination regarding whether or not the Respondent is responsible for violating Title IX policy based on the institution’s evidentiary standard (“preponderance of evidence” or “clear and convincing”). Decision-Makers must issue the written determination to both parties simultaneously, and the determination must include:

• Identification of allegations alleged to constitute sexual harassment under Title IX;
• Description of the procedural steps taken throughout the formal complaint process;
• Findings of fact supporting the determination;
• Conclusions regarding the application of the institution’s conduct code to the facts;
• Rationale for the result of each allegation, including any determination regarding responsibility;
• Any disciplinary sanctions imposed on the Respondent;
• Any remedies provided to the Complainant; and
• Information regarding the appeals process.

Decision-Makers and the Appeals Process

Both parties have the right to appeal any determination regarding responsibility or the institution’s dismissal of a formal complaint or allegations within a complaint. The regulations lay out limited grounds on which a party may appeal:

• Procedural irregularities that affected the outcome;
• Emergence of new evidence or information that was not reasonably available at the time of the determination that could affect the outcome; and
• Conflict of interest or bias among the Title IX Coordinator, Investigators, or Decision-Makers that affected the outcome.

Your institution may also offer the opportunity to appeal on other grounds, provided that the opportunity is given to both parties equally.

As we noted above, Decision-Makers for the appeals process must not be the same Decision-Makers who reached the determination regarding responsibility or dismissal of the allegations. Decision-Makers in the appeals process must comply with the same standards of evidence and relevance set forth in the formal grievance process, and they must afford both parties an equal opportunity to submit a written statement. Like their counterparts in the formal grievance process, Decision-Makers for the appeals process are responsible for issuing the written decision describing the result of the appeal and their rationale for the result, and the written decision must be provided simultaneously to both parties. Be sure to include a statement that the appeals decision is final.

Decision-Makers in K-12

Like those at higher education institutions, Decision-Makers at K-12 schools play a similar role as arbiters in the Title IX grievance process, but with one major difference—under the 2020 regulations, K-12 schools are not required to hold live hearings. Whether or not a school chooses to conduct a live hearing, after the school sends the investigative report to the parties, Decision-Makers must allow each party the opportunity to submit to the Decision-Maker relevant written questions to ask the other parties or witnesses, provide each party with the answers, and allow for additional limited follow-up questions. The same definition and requirements regarding relevance apply to K-12 schools as well, and Decision-Makers must similarly explain any decision to exclude a question for lack of relevance.

We know that Decision-Makers shoulder many responsibilities. We will be back soon with our next refresher post on the roles and responsibilities of Title IX Informal Resolution Facilitators, so stay tuned.

For our previous post on the Title IX Coordinator, click here.

For our previous post on the Title IX Investigator, click here.