New Title IX Regs – Two Weeks to Implementation: Live Hearings and Determinations Regarding Responsibility

In our last several alerts, we have outlined an institution’s obligations in responding to formal complaints under Title IX and the new regulatory requirements related to investigations. In this alert, we describe the requirements related to live hearings.

Live Hearings – What you need to know

The new regulations do not allow a finding of responsibility under Title IX by post-secondary institutions without a live hearing. Although the prospect of a live hearing may be daunting, the Department of Education gives institutions significant discretion in designing the hearing process.

The regulations contain the following requirements for a hearing:

• The hearing decision-maker cannot be the same person(s) as the Title IX Coordinator or the investigator.
• Parties’ advisors must be permitted to ask the other party and witnesses all relevant questions and follow-up questions, including questions challenging credibility.
• Before a party or a witness answers a question, the decision-makers must determine if the question is relevant and provide an explanation if they decide to exclude the question as not relevant. Although decision-makers must make determinations regarding relevance of evidence, it is important to note that the decision-maker need not be a lawyer. It is also important to note that the rules of evidence followed in litigation do not apply to live hearings. Generally, questions about the complainant’s sexual predisposition are not relevant.
• Cross-examination must be conducted directly, orally, and in real time by the parties’ advisors. The institution must provide an advisor to an unrepresented party for purposes of conducting cross-examination. If a party or witness does not submit to cross-examination at the live hearing, the decision-makers cannot rely on any statement of that party or witness in making a determination regarding responsibility. That said, the decision-maker cannot draw any inferences based solely on a party’s or witness’s absence from the live hearing.
• Technology that allows the hearing to take place with the parties in separate rooms while still allowing the parties to simultaneously see and hear each other and the witnesses must be available upon request.
• An audio recording, an audiovisual recording, or a transcript must be taken and made available to the parties for inspection and review.

The regulations do not provide specific guidance on other matters, such as opening and closing statements, direct examination of parties, and how advisors may participate in the live hearing (other than with respect to cross-examination). These matters are left to the institution’s discretion.

After the live hearing has concluded, the decision-maker must issue a written determination regarding responsibility and provide it simultaneously to the parties. The decision-maker may use a preponderance of the evidence or a clear and convincing standard for determining responsibility (but note, the institution must use the same standard across all Title IX proceedings).

The written determination must include:

• the allegations potentially constituting sexual harassment;
• a description of the procedural steps taken (including notifications to the parties, interviews with parties and witnesses, methods to gather evidence, and hearings held);
• findings of fact supporting the determination;
• conclusions regarding the application of the institution’s code of conduct;
• a statement of the result as to each allegation, including rationale for the results (including a determination of responsibility, description of any sanctions, and any remedies provided to the complainant); and
• procedures and permissible bases for appeal.

Live Hearings – What you need to do

• Draft a streamlined grievance procedure for use in Title IX cases;
• Develop rules of procedure for live hearings, including rules of decorum for advisors;
• Determine who will be a decision-maker with respect to hearings;
• Consider whether your institution would benefit from bringing in an outside professional to act as a hearing officer in Title IX cases; and
• Develop a template for written determinations for use by decision-makers.

This is the fifth in a series of alerts regarding the new Title IX regulations. We will continue to address other big picture changes, and their practical effects, in the next few weeks as we meet, and surpass, the implementation deadline.