Since the start of the spring 2021 semester, TNG’s consultants have been involved in about 15 hearings under the new 2020 Title IX regulations. We’ve served as party advisors, investigators, and decision-makers. Here is some of what we’ve learned so far:
- Don’t hesitate to phone a friend. For any college or university’s first few hearings under the new regulations, make sure that your decision-makers have access to legal counsel during the hearing, usually by phone or text. Decision-makers are new at this, the regs are complex, and you want to be sure that they have access to the expertise necessary to conduct a thorough and efficient hearing.
- Moreover, the value of panels is the ability to consult with others, gain insight from diverse perspectives, and have access to someone else to bounce ideas off of. When acting as a single decision-maker, the collaborative value of the panel is lost, but within TNG, we consult (anonymously and confidentially, of course) with each other when facing a tough decision, to test our thinking, check our biases, and ensure that we’ve thought of everything. This gives us great confidence in the quality of our decisions.
- Panels continue to be weaker on substance than what should be the baseline for competent adjudication across the field. More training is needed. Decision-makers need to be familiar with policy, of course, but also need strong subject matter expertise in the areas in which they are adjudicating. Using a decision-maker who is an attorney or even a judge does not automatically make them a subject-matter expert on incapacity, assessing credibility, or knowing how to operationalize the reasonable person standard in a sexual harassment allegation.
- According to ATIXA’s recent 2021 Member Survey data, more than a third of colleges and universities are outsourcing this role regularly now. We expect that trend to grow. It just makes sense. External adjudicators can be a real boon but choose your provider carefully. In one hearing recently, an outside neutral decision-maker from a large corporate firm ran a hearing for 16 hours. Why? Was it complex enough for 16 hours? No. The decision-maker effectively ignored the investigation and went over every element of evidence from anew. That firm is a billing machine, and 16 hours costs more than the 7 hours it should have taken. That’s why TNG offers the option of flat and capped fees when we serve as hearing decision-makers. Putting the parties through an exhaustive re-examination of everything is excruciating, isn’t trauma-informed, and everyone’s stamina wears thin.
- Remember, the investigators are the line cooks (or sous chefs), and the decision-maker is the head chef. The line cooks get all the ingredients together for the head chef to combine and heat, so that the head chef doesn’t have to do all the leg work themselves.
- TNG’s consultants have least one hearing per week scheduled through the end of the year, and the requests are increasing. Many institutions tried to use internal resources at first, and quickly realized that internal hearing officers can’t often afford to put in the time that these adjudications require. Not only do our clients remark on our efficiency and expertise, but they really like the completeness and thoroughness of the hearing rationales we write. If you’d like to see an anonymized example of a rationale written by a TNG decision-maker from a recent hearing, please click here.