The May 2020 Title IX regulations have colleges and universities across the country working diligently to assure their compliance with the new live hearing requirement. One controversial component of the new regulations requires a form of cross-examination between the parties and witnesses. For those of us in the Title IX field who are not trained attorneys but may be serving as hearing chairs or decision-makers, managing this questioning element feels daunting. As one of those non-attorney professionals, I highly recommend that you incorporate pre-hearing meetings within your process to ease some of the angst. The regulations permit the efficiency of adding pre-hearing meetings, much as the law does with trials, but does not prescribe them.
Within the new Title IX procedures, the cross-examination must be conducted by the parties’ advisors at the hearing. The parties are entitled to advisors of their choosing. Thus, we can expect that the Title IX regulations will result in more attorney-advisor participation in the formal hearing process. Remember that each institution controls its process, despite the potential that the parties’ attorneys may attempt to dominate the process. Therefore, a pre-hearing meeting with the parties and their advisors helps to clearly establish from the outset that the hearing chair or decision-maker controls the hearing.
Additionally, pre-hearing meetings can be extremely important in setting the tone for the hearing. A hearing chair can use a pre-hearing meeting to:
- Meet the parties and their advisors in advance;
- Cover the structure and flow of the hearing with the parties and their advisors;
- Review the rules and decorum expected at the hearing, emphasizing what behaviors will and will not be allowed;
- Conduct a preliminary review of the questions to be asked during cross-examination;
- Explain applicable rules of evidence and admissibility;
- Rule on relevance of cross-examination questions in advance. If a question is deemed to not be relevant, the chair will want to formally document the rationale for that decision;
- Rule on any pre-hearing efforts by parties to have evidence from the investigation declared irrelevant;
- Ascertain if any party or witness intends not to attend or not to submit to cross-examination, and explain the effect this will have – that the decision-makers will not be able to rely on any statement of that party/witness made at any time;
- Clarify what materials/exhibits will be needed/available during the hearing and how they will be distributed;
- Go over any technology logistics of the hearing, and clarify how the parties will communicate remotely with their advisors during the hearing;
- Answer any questions the parties/advisors may have.
A major benefit of pre-hearing meetings is the chair’s ability to conduct a preliminary review of the questions that parties seek to ask during the hearing. Although parties and advisors cannot be compelled to submit questions in advance, they certainly can be invited to do so. Making explicit relevancy determinations, which has not previously been a common practice of Title IX hearing officers, is now required under the regulations. Relevancy determinations, more common in the legal profession, require specific training and practice to master, especially because the special evidence rules in the Title IX regulations are not reflective of the federal rules of evidence.
Recognizing that many chairs will be new to their roles and to making these determinations, one benefit to pre-hearing meetings is that they create opportunities to slow down and permit more time for relevancy determinations. Where many evidence and questioning issues arise, they could double the length of the hearing. Addressing most of them pre-hearing will minimize fatigue for all participants. Marathon hearings exhaust everyone. Otherwise, each issue will need to be addressed on the spot during the hearing, which may interrupt the natural flow of the hearing (especially to consult with legal counsel) and increase the likelihood of errors.
Pre-hearing meetings can benefit the parties and advisors as well. Critics of campus resolution processes have been vocal about the likelihood that live hearings will traumatize both parties. For complainants, retraumatization is a conscious or unconscious reminder of past trauma that can be triggered by certain environments that replicate the dynamics of the original trauma. Such dynamics could include loss of power, control, and fear for safety. Respondents, too, can find that participating in an intense Title IX process, including a live hearing, creates a trauma of sorts, or at least extreme anxiety.
A pre-hearing meeting will not eliminate the emotional effects of the live hearing on the parties, but the more opportunities a chair has to prepare for how the hearing will be conducted, and educate the parties and advisors in advance on the process and relevant issues to be addressed, the more likely they can reduce the effects of a long, stressful, and potentially traumatizing hearing itself.
When a hearing chair feels prepared in advance of the hearing, the hearing will proceed more smoothly, and the chair will be less likely to make substantive or procedural errors. As the old adage goes “practice makes perfect.”