This is the second article in a series exploring what our Title IX team has learned in the year following the implementation of the 2020 Title IX regulations.
Since the new Title IX regulations were released in May of 2020, Title IX teams and higher education attorneys and administrators have invested significant effort into understanding the requirements imposed for the live hearing mandated at the conclusion of the required grievance process. We have discussed the cross examination requirement, the Title IX-specific standard for relevant evidence, and the impact of the exclusionary rule (and its subsequent repeal that is being appealed by the state of Texas).
But now, as the Title IX hearing requirements have moved from theoretical to reality, many of the hearing-related questions we have fielded relate to what must occur well before hearing day. This less-discussed phase of the hearing process is equally important to ensuring your next Title IX hearing runs smoothly. We have some tips for items to check-off before the hearing starts:
- Train. You are likely well-aware of the details surrounding the training requirements (for the laundry list, take a look at Section 106.45(b)(1)(iii) of the Regs). But think about the timing for identifying who your hearing team members will be and the best time for training them. Before you designate or disclose them during the process, you will want to be sure you know the names of all parties and witnesses for potential conflicts purposes. And even those who have been trained in the past year may need refreshers so that they are confidently prepared to conduct or participate in the new and likely unfamiliar hearing process.
- Schedule. Determine the availability of your hearing officer/panel, parties, and any other key staff or witnesses. Once a date is selected, make sure that you have an adequate physical and/or virtual space to hold the hearing that affords the privacy and confidentiality necessary for the proceeding. Reach out to any witnesses who will be needed for the hearing.
- Communicate. Provide a detailed notice of hearing, setting forth the policies and procedures to be applied and all other relevant details for the hearing. Determine whether you will hold a pre-hearing meeting, which is a useful to ensure the parties and advisors understand how the hearing process will work, and address the procedural or substantive issues that might otherwise not arise until the hearing. Convey your institution’s expectations and appropriate decorum for the hearing in advance.
- Draft. If you not already done so, prepare your hearing Rules of Decorum, informing participants of hearing expectations and, importantly, any consequences for failure to adhere to the them. Prepare a script to be read at key points in the hearing, including the opening, closing, and as each new witness is introduced. This script should reference the relevant procedures for each stage of the hearing process.
Over the past year, members of our team have been training hearing panels, working to help schools develop fair hearing policies and procedures, serving as hearing officers, and advising schools on the process and decision making. Although we recognize that one can never anticipate all the issues that could arise during a hearing, we have learned that with thoughtful advanced planning, schools can build a strong foundation for their team members to confidently and capably serve on hearing day.