[co-author: Jenny Lee]*
Earlier this year, we launched a multi-part series where we provide 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 to come. 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. Now is a great time to identify who will serve in these roles for the upcoming school year and ensure those individuals have the necessary training.
For our final post in this series, we’re focusing our spotlight on the Title IX Advisor. Unlike the other Title IX roles that we’ve discussed in previous blog posts, there are no training requirements for advisors under the 2020 regulations. In fact, as we will discuss below, the advisor role can be filled by virtually anyone, including non-employees. However, we highly recommend that your school or college maintain a roster of trusted individuals who can fill in as advisors when needed and receive at least basic training in your Title IX policy and procedures.
Role and responsibilities of the Title IX advisor
So, who is—and who can be—a Title IX advisor? While the role of a supporting advisor was recognized in Obama-era Title IX guidance, the 2020 regulations formalized and expanded the advisor’s responsibilities, particularly in relation to the newly created formal hearing process. Under the current regulations, all parties in a grievance process may choose anyone to be their advisor, such as a teacher, parent, friend, or an attorney. The party’s advisor has the right to attend any grievance meeting or proceeding with the party and to inspect and review any evidence related to the complaint.
Most importantly, advisors play the role of interlocutor during a formal live hearing, carrying out the cross-examination of parties and witnesses on their party’s behalf. (Recall that live hearings are required for higher education institutions and optional for K-12.) The regulations state that cross-examination must occur “directly, orally, and in real-time” by the party’s advisor and “never by a party personally.” Because the advisor plays such a fundamental role in the hearing process, the regulations require higher education institutions to provide a party with an advisor to represent the party during a live hearing if the party does not have one. Other institutional requirements pertaining to advisors are outlined below.
Institutional requirements regarding advisors
Both K-12 schools and postsecondary institutions must ensure that parties have the notice and opportunity to be accompanied by an advisor of their choice at key stages of the grievance process. The 2020 regulations require that institutions:
Written notice of allegations
- Include in the written notice of allegations to the parties a statement that they may have an advisor of their choice who may be, but is not required to be, an attorney.
Grievance meetings and proceedings
- Provide all parties with the same opportunity to have others present during any grievance meeting or proceeding, including the opportunity to be accompanied by their advisor;
- Do not limit a party’s choice or the presence of their advisor in any meeting or proceeding (though the institution can establish restrictions about the extent to which the advisor may participate, as long as the restrictions apply equally to all parties); and
- Provide parties and their advisors the equal opportunity to inspect, review, and refer to all available evidence at any hearing.
- Send each party and advisor a copy of available evidence by electronic format or hard copy prior to the completion of the investigation report, providing them at least 10 days to inspect, review, and submit a written response, which the investigator must consider while drafting the report; and
- Send each party and advisor the complete investigative report for their review and written response at least 10 days prior to a live hearing or other time of determination regarding responsibility.
- At a live hearing, permit each party’s advisor to ask the other party and any witnesses relevant questions and follow-up questions, including those challenging credibility; and
- If needed, provide an advisor to conduct cross-examination on behalf of a party at the live hearing without fee or charge to the party.
Recommendations for advisors
When addressing questions from advisors or potential advisors about their role in the Title IX process, keep the following advisor tips in mind:
- Regardless of the advisor’s relationship to the party, it is important to establish rapport early on. Listen to the party’s story and allow them to articulate their needs and expectations from the advisor and the Title IX process.
- Follow the rules—including rules regarding timeframes, decorum and other behavior—that the institution prescribes for advisors, and always be respectful to other parties, witnesses, advisors, and Title IX officials.
- Review the evidence provided for inspection before the investigative report is finalized. Know that the party and the party’s advisor have the right to submit a written response to the evidence, which must be included in the final investigative report.
- Once the party and the party’s advisor receive the investigative report, review it carefully to prepare for the live hearing, if there is one. Meet with the party to discuss questions and strategies. During the cross-examination at the live hearing, remember that the advisor’s role is to ask questions on behalf of the advisor’s party that will help determine relevant facts, clarify gray areas, and probe the credibility of the other party and witnesses. Note that the decision-maker(s) will determine whether each question is relevant before allowing the other person to answer, so it is important for the advisor to understand what constitutes “relevance” under the Title IX process and ask the Title IX Coordinator prior to the hearing any questions about this topic. (You can also refer to our discussion of relevant questions in the live hearing in our earlier post here.)
Recommendations for institutions
In the commentary to the 2020 regulations, the Department of Education states that the regulations do not impose training requirements or a prohibition of conflict of interest or bias for advisors in order to leave schools and colleges as much flexibility as possible to comply with the requirement to provide advisors for parties without one.
However, given the quasi-legal role that advisors play during the live hearing, as well as the complex range of issues and questions that advisors must consider, we strongly recommend that your Title IX team includes a pool of trained advisors from across your institution or district that can step into the role when needed, often on short notice. It may be helpful for your Title IX policy and procedure to provide a deadline by which a party must inform the Title IX office (e.g., 3 days or one week before the live hearing) that they need an advisor in order to provide the appointed advisor reasonable time to meet with the party and review all relevant evidence.
When providing parties and advisors with copies of evidence or the investigative report, consider selecting a file sharing platform that restricts them from downloading or copying the documents. The Department of Education notes that even with such restrictions, institutions will fulfill their obligation to provide an electronic copy of such documents to parties and advisors.
Be aware of the possible differences in advisor selection, such as in a situation where one party retains an attorney while the other brings a parent or friend. Remember that the regulations allow institutions to limit (and if desired, significantly limit) the active participation of advisors during meetings, provided that such restrictions are applied equally.
Finally, note that the Department of Education states that when union representatives serve as advisors, in the case of any conflict between a union contract or practice and the Title IX regulations, the Title IX regulations preempt the union contract or practice.
We will keep you updated on key developments in Title IX as we await the release of the Biden administration’s proposed regulations later this month.
For our previous post on the Title IX Coordinator, click here.
For our previous post on the Title IX Investigator, click here.
For our previous post on the Title IX Decision-Maker, click here.
For our previous post on the Title IX Informal Resolution Facilitator, click here.
*Third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.