Unpacking the Final Title IX Regulations, Part 2: More Q&A With Josh Richards
Host: Hello, and welcome to today’s webinar: Unpacking the Final Title IX Regulations, Part 2 — More Q&A with Josh Richards. All attendees are in listen-only mode. Today’s program will be approximately 60 to 75 minutes long. Webinar resources are available in the resources list to the right of the presentation. Please note that this program was prerecorded using previously submitted questions. If you need help with technical issues, simply enter your question or comment in the question box on the bottom of your screen and click submit. And now here’s today’s moderator, Hillary Pettegrew.
Hillary Pettegrew: Thanks, and welcome everyone. I’m Hillary Pettegrew, senior risk management counsel at UE. This webinar is a follow-up to our May 28th program on the final Title IX regulations, which are scheduled to become effective August 14th. We’re delighted to have Josh Richards with Saul Ewing Arnstein & Lehr back to answer more questions about the regulations. Welcome Josh. And thank you for joining UE again.
Josh Richards: Thanks so much Hillary. I’m really happy to be here.
Pettegrew: Especially if you weren’t able to participate in the first webinar with Josh on May 28th, I recommend you access the recording of that program on our risk management website, EduRisk Solutions. Josh’s presentation included a PowerPoint with detailed information about the regulations that schools may well want to use when preparing to comply. And he also answered a large number of audience questions. You can find a link to the previous webinar in the resources list. Today’s program should also be available on EduRisk Solutions in a few days. And those who registered should get an email when the file is posted. Today’s program is in question-and-answer format only. We’ll address some questions received during the May webinar that we didn’t have time to answer and some new questions received during registration. The PowerPoint will display the questions just to help everyone keep track of the issues Josh is discussing as we go along.
So, let’s get started. The first question for Josh is probably of great interest to every educational institution subject to Title IX: “Several lawsuits have been filed challenging the new regulations, and at least one is seeking an injunction to stop them from going into effect on August 14th. How likely is it that an injunction will be granted?”
Richards: Well, it’s really hard to say what the likelihood is going to be in any lawsuit, as you know, Hillary. State AGs have filed motions for preliminary injunctions against the regs in two different lawsuits. One in the Southern district of New York, and one in the district of D.C. There’s also another lawsuit that’s pending as well. Those motions are all set to be heard before the implementation date, but I think it would be very difficult for us to advise our internal clients or for me to advise my clients that we can expect that the regulations will be enjoined and that, as a result, we should do anything differently with respect to our compliance obligations. If I had to handicap it right now, I would certainly say that the chances of an injunction are less than 50/50 and that institutions should plan to be compliant on August 14th. And if for some reason we get a windfall, then, we’ll count ourselves lucky.
Pettegrew: If a matter starts before August 14th, do we have to change to the new procedures for that matter, or do they only apply for complaints made on or after August 14th?
Richards: This is a question that I’ve seen a lot. And the way that I think is the best way to approach it is that there’s nothing in the regulation that states that the regulation isn’t effective for matters that are reported but not completed prior to the effective date.
And I’ve certainly heard a few rumblings that the department may take the position from an enforcement perspective that it’s only going to enforce the regulation for matters that are commenced by formal complaint or reported after the 14th. But my view would be that unless we have that in writing from the department, it would be relatively risk-seeking to take that approach. And when it comes to the procedures that you’re going to use to resolve these cases, my guess is that a case that’s midstream is probably going to proceed along the lines of an investigation that’s not very different from what the regulations require in the first place. So really, the first place where the procedures and the regulations would kick in would be at the end of the investigation when the institution provides the evidence in the final investigative report to the parties and then moves into a hearing. And the hearing is obviously likely to be quite different from what schools are doing now.
It would be my view that the risk-averse way to proceed would be to have the notices associated with the investigation provided, the access to the evidence provided consistent with the regulation at a hearing consistent with the regulation, for any of those process points that will occur after August 14th. I think this is an issue that will happen at most sort of a few times for each institution. And once we’re sort of past that in a point that’s likely to come up again. But I do think when you weigh individual risk in these cases as we sort of move through this, there probably isn’t a one-size-fits-all answer to this question.
Pettegrew: The preamble says that sexual exploitation is included in sexual harassment. Does the preamble have the same force of law as the regulations themselves?
Richards: So there’s two questions bound up here, right? One is, “Does the preamble have the same force of law as the regulation?” And the answer to that is no. The preamble is an explanation of how the department interprets the plain language of the regulation. So we’re not bound by the preamble as a matter of law if, for instance, it’s completely at odds with the plain language of the regulation.
That said, it does give us information about how the department will be enforcing the plain language of the regulation. So I would say except in really very clear or extreme circumstances, it would be prudent to abide by the terms of the preamble.
From the perspective of sexual exploitation being included in sexual harassment, I think that’s a little bit of a simplification. I think what the preamble is saying is the regulation doesn’t ban sexual exploitation as a standalone offense. What we do instead is we analyze the facts underlying conduct that might constitute sexual exploitation under your prior policy, or even under your current one. And we say, “Do those facts, does that conduct, meet the definition for sexual harassment in the regulations as drafted now? Is the conduct severe, pervasive, and objectively offensive?” If the answer is yes, then the sexual exploitation conduct falls under Title IX by virtue of meeting that definition. I would say based on the pre-regulation definitions of sexual exploitation that [inaudible] on policies, some of that conduct will meet this definition, and some won’t. And I would say when we draft our policies, there are sort of a variety of ways that we can approach this, right? We can maintain a standalone definition of sexual exploitation. And note that to the extent it meets the definition set forth the regulations of severe, pervasive, and objectively offensive, then it’s covered by Title IX. And to the extent that it doesn’t, it isn’t.
We could define it as a subset of sexual harassment, sort of setting up the ground rules and then giving sexual exploitation offenses as sort of examples of conduct that might meet those ground rules. Or we could just leave it out entirely and just assess conduct as it comes in on a case-by-case basis and where sexual exploitation conduct meets the definition, proceeding Title IX. I think there’s a bunch of ways that we could approach this. But certainly some conduct that constitutes sexual exploitation will continue to be Title IX-prohibited as included in the definition of sexual harassment.
Pettegrew: Can we give employee complainants the option of moving forward internally under either Title VII or Title IX, or do they have to use the Title IX process?
Richards: I think that the key to thinking about this question is the idea of the primacy of a Title IX grievance procedure. If conduct that’s been alleged meets the definition of Title IX-prohibited conduct, including the conduct and the jurisdictional elements, then we must use a grievance procedure that complies with 106.45. In practicality, that probably means that for conduct that they’re alleging that meets the definition of Title IX, we have to use the Title IX process. But that doesn’t mean that we have to use Title IX for everything. And it may be that some portion of the allegations counts for Title IX, and some portion doesn’t. For the portion that doesn’t, I think we’re free to either consolidate those things and use Title IX for everything, or sever those things and use Title IX for the portion that we want to use for Title IX, and Title VII for the portion that we want to use for Title VII.
I think some of this will come down to communication with our employees in describing the process that will relate to different kinds of allegations. We could stage the allegations and hear the Title VII portion first if the employee wants to delay their formal complaint under Title IX until after the Title VII matter resolves. I think there’s a real wide variety in how we can address this. But I think the critical thing to keep in mind is that for the portion of the conduct that qualifies as Title IX covered, we must use that Title IX grievance procedure in order to be compliant.
Pettegrew: Under the regulations, can the process for employees, particularly tenured faculty who are named as respondents by students, be different from the process for student-on-student cases as long as it includes a hearing with cross-examination?
Richards: Yes. I would add just a bit to the last clause of the question. But the answer I think is yes, they can be different. There’s nothing in the regulation that says we have to use precisely the same procedures for different classes of respondent. But in addition to having the live hearing with cross-examination, we would also have to follow all of the other requirements of the 106.45 grievance procedures. As long as that’s true, I don’t read anything in the reg as saying that we have to make those processes identical — with the limited exception of the standard of proof. Of course, the standard of proof in all students, faculty, staff, and other employee or third-party proceedings does have to be the same. But apart from that, and I think the real interest here is in adapting the procedures, particularly for faculty to account for grievance procedures around tenure and that sort of thing, there’s no reason that we can’t, as long as we do so equitably, have slightly different processes for different kinds of respondents.
Pettegrew: Does the same standard of evidence need to apply to all other code-of-conduct violations, or only to those alleged violations involving sexual misconduct?
Richards: So the NPRM had a provision that said we needed to use the same standard of proof to adjudicate sexual harassment allegations as we do for other kinds of serious misconduct. And that provision has come out of the final rule. So what the final rule says is that we need to adjudicate conduct that falls under Title IX with the same standard of proof across different classes of respondents. We don’t need to use that ratchet with respect to other kinds of misconduct. So the answer to this question is no, we don’t need to use the same standard of evidence — so long as we use the same standard in all sexual harassment resolutions.
Pettegrew: How do institutions balance conflicts between state laws and the regulations with respect to notice and the obligation to respond to allegations of sexual misconduct?
Richards: It’s a great question, and it’s one that’s difficult to answer in the abstract because state laws are so different. But essentially, the department has evinced an intent to preempt any inconsistent state law. So to the extent that a state law would require institutions to take certain steps upon certain kinds of notice that might not meet the notice requirements under Title IX, then to the extent those things are irreconcilable, the state law would have to give way.
My strong suspicion is that with respect to the vast majority of state law requirements, we can reconcile them. And without having the specific state law that’s at issue here in front of me, and it’s difficult to analyze that. But the short answer is that if we really do have to engage in a process of reconciliation where there’s a conflict, then the state law will have to give away.
Pettegrew: Do you recommend that we remove “responsible employee” language from our policies, or may an institution still designate most employees as responsible employees and require that they report to the Title IX coordinator?
Richards: So I’m going to take this one in reverse. Institutions absolutely may still designate employees as responsible employees and require that they report to a Title IX coordinator. The department doesn’t take any position on policy-driven decisions to do that. So if there is an institutional imperative to do this, if your institution has decided that it wants to create a culture around reporting and it’s done this, there’s no reason that you need to change it. I tend to like our responsible employee designations, in part, because I think that the risks of doing so are vastly outweighed by the benefits of having something be sort of an ”open secret”’ and have a Title IX office not know about it. So this really comes down to individual institutional decisions. And my own slight preference is to continue to use responsible employee designations for some portion of your employees. But this really is up to you.
Pettegrew: If a student tells a faculty member about a student-on-student sexual assault, and the faculty member tells a dean in passing that the student confided in the faculty member, does the university have actual notice since the dean could institute disciplinary action?
Richards: Yeah. So this is a good question. I think it certainly zeroes in on the difference between the prior regime of constructive notice and the current status of actual notice. And I think this is the sort of situation where a response would be required. What we have here is, as the question points out, a dean who in all likelihood has been vested with the institution, with the authority to institute corrective measures. And that dean is on actual notice. Now the dean doesn’t need to know that it’s true, the dean doesn’t even need to know that it’s probable. What the dean has here is a report. Someone has reported to the dean that the conduct that could potentially constitute sexual harassment prohibited by Title IX has occurred in the university’s program or activity. That triggers an obligation for the Title IX coordinator to reach out to the affected party, to the complainant, even though they’re not the reporter, and to offer supportive measures and explain how to file a formal complaint. I think it would be extraordinarily risk-seeking in this instance to not do that. And that is the standard that’s imposed. It’s no longer a knew or should have known, but this isn’t a knew-or-should’ve-known situation. This is actual knowledge. So I think the answer is yes.
Pettegrew: If a sexual assault occurs between two students at a party in an off-campus house, neither owned nor controlled by our university, we are not allowed to respond under Title IX because there’s no jurisdiction, but we can address the matter under our campus code of conduct, correct?
Richards: Absolutely you can. And this is a situation where the jurisdiction of Title IX might be a little bit broader. I think the questioner was using shorthand here. Of course, if that off-campus house was owned or controlled by a student group that’s recognized by the university, that would bring it within the program or activity. But I think the question, what it’s really getting at, is, “When we have conduct that does not meet all of the elements for Title IX” — what I’ll call Title IX jurisdiction — “what do we do? Do we have authority to address that conduct?” The answer is the department is very clear that we do. If conduct is reported to us that doesn’t meet the threshold for Title IX and we want to prohibit it and apply different policies or procedures to it, institutions are absolutely free to do so.
Pettegrew: Would domestic violence or stalking that is not sex-based fall under Title IX? And if it occurs at a location that is not controlled by the institution, does that mean the school has no obligation to offer supportive measures?
Richards: So there’s a lot packed up in this question. I’ll answer the first question first. Title IX defines sexual harassment as conduct on the basis of sex that satisfies one or more of the following. And then of course it has the quid pro quo. It has what we used to think of as sort of hostile environment: severe, pervasive, objectively offensive. And then it has the Clery crime section. So all of those elements of sexual harassment are qualified by the sort of header table setting, conduct on the basis of sex. So stalking or domestic violence that are not on the basis of sex would not fall under Title IX. I think in some circumstances, that will be easy to determine. In other circumstances, it might be more difficult, particularly in the domestic violence context. Although child abuse seems like one aspect of domestic violence that may often fall outside of the definition.
The second part of the question asks if it occurs in a location not controlled by the institution, does that mean the school has no obligation to offer supportive measures? And I think that’s unduly limiting. A location not controlled by the institution doesn’t really get at what the department is zeroing in on with program or activity, right? If a biology class goes to a lakeside to take samples, and the professor was there, and the students are there, and it’s part of the class, then that location may not be controlled by the institution, but it’s certainly within the programs and activities of the institution.
So I think what we’re really getting at here is what about conduct that occurs outside the programs and activities of the institution? Does that mean that we don’t have obligations to offer support measures? And the answer is yes. The answer is we don’t have that obligation where the conduct does not meet the threshold for Title IX.
It’s important to note that the obligation to provide supportive measures has a lower threshold than the obligation to respond to the grievance procedure. Because for a grievance procedure to kick in, the complainant, for instance, has to be participating in the program’s activities at an institution or attempting to participate. That isn’t true at the supportive measures stage. But really, fundamentally, the Title IX regulations impose response obligations on institutions. The response obligation arises when we have actual notice of sexual harassment as defined by the regulation. And if that sexual harassment takes place outside of our programs or activities, then it doesn’t meet the threshold. So we don’t have actual notice of sexual harassment. So we don’t have a response obligation.
Now as a practical matter, is that something that I recommend? Not really. I think it makes a lot of sense to provide supportive measures in a wider variety of situations than what is strictly required by the Title IX regulation. But to answer the question that was asked, does that mean the school has no obligation to offer supportive measures? If it was outside the programs and activities of the institution, under the law, we don’t have that obligation.
Pettegrew: How do you see the regulations governing a situation where a respondent student is a senior in the middle of the Title IX process at the time of graduation? We’re prohibited from imposing sanctions until the matter is concluded. But after graduation, the respondent is no longer under our jurisdiction. Do you think OCR would expect us to withhold the degree pending resolution, drop the case and grant the degree, or something else?
Richards: I’m going to go with door number three here. I think this is a something else situation. And I think the first thing to keep in mind when it comes to what I was just talking about, our response obligation, is that we have an obligation to not be deliberately indifferent. That’s the baseline threshold obligation that Title IX imposes on institutions.
And under the final regulation, included in that sort of ball of wax of not being deliberately indifferent is responding with a grievance procedure that complies with all the regulatory requirements. But what the department says is that response obligations is not focused on sanction. It’s focused on remedies. So when we think about punishing our respondent as this question sort of implies, I think the government would say, “Well, we don’t really concern ourselves with the way that this respondent is punished. We concern ourselves with whether or not and how effectively you have restored access to the programs and activities of your institution to the complainant upon a finding of responsibility.”
Because, of course, we can’t impose any remedy that would be punitive in nature or any sanction until the grievance process is complete. So the question here posits a situation in which at graduation, the grievance process isn’t complete. I think the department would say we are absolutely precluded from doing anything that would be punitive in nature to the respondent prior to the conclusion of the grievance procedure. So in this hypothetical, we would be precluded from withholding the degree of that respondent prior to graduation.
Nor, though, do I think that we would be required to drop the case. I think what the department would say is to the extent that the respondent is no longer participating in your programs or activities following graduation, you have the option of dismissing the matter, that’s a permissive ground for dismissal. But it might be that there are things about this case that are still required even post-graduation in order to restore access to the complainant. Or the institution may have an interest in continuing to pursue the matter even after graduation.
If the concern is about your jurisdiction over the respondent, I suggest that institutions draft their policies to make clear that even after graduation, they can do things in situations like this to put a hold on a post-graduation transcript, potentially to revoke a degree. And those things remain in an institution’s authority even after graduation. So I think the answer here is that what OCR would expect is that you not take any action that’s punitive in nature prior to the completion of the grievance procedure, and that you do what you can to restore access to the complainant after the grievance procedure has completed to the extent you have a responsibility finding. That may mean, for instance, if the complainant hasn’t graduated yet barring the respondent from coming back to campus until the complainant has graduated. I think there are a lot of things that might be fundamentally remedial in nature that you can continue to accomplish post-graduation. So I think the way that I would approach this question is from that perspective and not from the perspective of what sort of sanctions are we able to impose.
Pettegrew: Since the regulations stipulate that we can only move forward with the Title IX process if we receive a formal complaint, does that mean that we’re no longer able to investigate an alleged serial perpetrator if all the alleged victims are reluctant to bring formal complaints?
Richards: So this really comes down to practicality, right? We don’t need a complainant to bring a formal complaint. The Title IX coordinator can sign a formal complaint without an affected party, an affected complainant, pursuing one on their own. With that said, there will be practical issues of proof, right? And the question asks, “We’re no longer able to investigate an alleged serial perpetrator, so we are able to investigate?” And I think in a situation with a serial perpetrator, it may well be that the department would find that we were deliberately indifferent by failing to have the Title IX coordinator sign a formal complaint to investigate if there was a suggestion that failure to do so would expose the wider campus community to potential further harm.
Now when it comes to finding that serial perpetrator responsible, remember that if we don’t have participating complainants, unless we have evidence that need not be subject to cross-examination like for instance, video, there may be practical problems with finding that person responsible. And I think that’s something that the department has taken into account and decided was less important to them than maintaining the integrity of the cross-examination system that they have set up. I think we can debate the wisdom of that, but that is how the department has set these things up. So this really becomes an issue of proof, and not of the ability to pursue.
Pettegrew: What about complaints making multiple allegations, only some of which involve Title IX, that all arise from the same action? For example, an employee claims wrongful termination, severe and pervasive sexual harassment, and wage-and-hour violations. Which parts of this could we consolidate to avoid running two parallel processes arising from the same set of facts?
Richards: The department does not prohibit institutions from adopting grievance procedures that are the same as its Title IX grievance procedures for resolution of other matters. And the department explicitly permits us to consolidate multiple formal complaints into the same action. So I don’t think it’s a leap for us to say if we wanted to in our policies, that to the extent we have multiple allegations that all arise from the same core set of facts, we have the discretion to adjudicate those as one proceeding.
Now, there may be drawbacks to that. The issues of hearsay and proof, cross-examination would all apply in that proceeding in a way that we might not prefer. But if the benefits of that outweigh having multiple proceedings, and your policy provides you with the authority to do so, I don’t see that there’s anything in the regulation that would prohibit you from consolidating as many of those things as you wanted to.
Pettegrew: Is there a deadline under the regulations for the reporting party to file a formal complaint?
Richards: There’s no temporal deadline under the regulations. The limiting factor is that at the time the complainant files a formal complaint, they have to be participating or attempting to participate in the university’s programs or activities. So there’s a practical concern that I think the plaintiff waits until after graduation or after they have quit their employment at the institution, that they may not meet the threshold for Title IX prohibited conduct. Therefore, you wouldn’t be able to address it under Title IX.
Now one might argue that that could be an advantage and that a complainant might forum shop in that way. Because if the complainant waited until after they graduated or after they quit, then the institution would be free to address that matter not as Title IX, but as sort of baseline prohibited conduct and not subject to cross-examination, etc. But from a Title IX perspective, there is no fixed deadline. The limitations are really just jurisdictional.
Pettegrew: Does the Title IX coordinator need to meet with every complainant who files a report, even if doing so will not result in a formal investigation?
Richards: Yes. The regulation requires the Title IX coordinator to meet with a complainant in response to a report in order to offer and describe available supportive measures, engage in an interactive process with the complainant around their preferred supportive measures, and provide information about filing a formal complaint. I would say even though the regulation doesn’t explicitly say so, it would be OK if this were the Title IX coordinator’s designee. But the implication that if doing so will not result in a formal investigation, that really has no bearing on the analysis. Once we have a report of conduct which could constitute Title IX sexual harassment, there is an obligation to reach out and meet. And that could mean speak by phone, or meet in person, or meet via Zoom. But for the process of engaging in that interactive process around supportive measures.
Pettegrew: Should a copy of the complaint be provided to the respondent?
Richards: As a practical matter, probably the answer to this question is usually going to be yes. I mean, the obligation is to provide a notice of allegations that contains essentially all of the information that would be contained in the formal complaint. And there’s also an obligation to provide all information that is directly related to the allegations and that’s gathered in the course of the investigation. Presumably the formal complaint would also qualify under that rubric in most cases.
There isn’t an affirmative obligation to provide the complaint itself in the first instance. But as a practical matter, you’re going to be providing it at some point. So the information in it is going to be subject to disclosure to the respondent, certainly. And whether or not you decide to actually provide the physical complaint or just to provide the information in the notice of allegations, I think, is probably up to institutions at the notice stage.
Pettegrew: The obligation upon receiving a report includes the duty to contact the complainant — even if the complainant did not actually make the report. What if the complainant does not want to be contacted and refuses efforts to provide supportive measures?
Richards: Our obligation is to contact the complainant and to offer supportive measures. The complainant’s under no obligation to engage, under no obligation to accept supportive measures. So if this happens, what we’re thinking about is how to document that we were not deliberately indifferent. So that means that we would document the reach-out, we would document that the reason that no supportive measures were provided was because the complainant refused them. And we would move forward.
Pettegrew: Could you please describe what is meant by the single investigator model?
Richards: Sure. The regulations prohibit what became known as the single investigator model. And that model essentially meant that the same person would investigate the allegations, find facts — in other words, determine whose version of events was more likely to be true — and often to impose sanctions as well. And what the final rule prohibits, or requires, I should say, is a separation of those functions. We have one person whose job it is to gather the facts, and we have a different person whose job it is to resolve credibility determinations and figure out which facts are more likely to be true than not, or are true by clear and convincing evidence.
Pettegrew: Would using as an investigator a coworker from the same office as the hearing officer be considered a conflict of interest or bias?
Richards: I don’t think so. I think the department has to write this rule in a way that allows an institution to staff all these functions internally. The fact that as a practical matter, most institutions aren’t going to be able to do that, doesn’t sort of take away from that. And the idea, I think, that an institution, particularly a small one but even a big one, would have a staff in its Title IX office where different folks, sort of different roles on different cases ─ person A as an investigator on one case, a hearing officer on another case, and an appeal officer on a third, and that those folks all sort of wear different hats to separate the functions that I was just talking about a moment ago ─ is absolutely a mode of compliance that the department explicitly contemplated in publishing this rule. So I think this circumstance does not present any inherent risk of conflict of interest or bias in my view.
Pettegrew: Are investigators subject to cross-examination at hearings?
Richards: Well, that would depend on whether or not the investigator has relevant evidence to present. I think in most cases, the investigator’s job is just to gather the relevant evidence. They aren’t a witness to the underlying proceedings. They might be called, I suppose, to talk about what they did. And if that’s the case and they were presenting relevant evidence, [they] certainly will be subject to cross-examination. If there were a dispute, perhaps, about something that was said during the investigation, that might be a reason that they have relevant evidence to present. But if they don’t have anything relevant to say, the hearing officer shouldn’t be calling them or permitting them to testify at the hearing. And if they do have relevant evidence to present, then they absolutely are subject to cross-examination.
Pettegrew: Do you have suggestions for investigators who may testify at hearings regarding how to document credibility of each party during their investigation in a way that doesn’t demonstrate bias or a leaning for either party?
Richards: Yeah. I mean, I really don’t think that under the final regulation, the investigator plays any role in documenting credibility. I mean, documenting credibility sounds to me like making a judgment about whether a party is telling the truth or not. And that judgment isn’t for the investigator to make under the final rule. It’s for the decision-maker to make.
And I can give you an example, right? The investigator might write in their report that on July 1st, the respondent said X. And on July 5th when interviewed again, the respondent said Y. And those things were inconsistent. That’s a factual statement. But to then go on and say, “Because those things were inconsistent, I find the respondent to be not credible,” strikes me as a non-factual statement. That’s a statement of opinion that the investigator is making. And I would suggest that having such statements in the investigator’s report is risky. The investigator’s job is to create an investigative report that fairly summarizes relevant evidence. The investigator’s opinions about truthfulness are not relevant evidence. So I think what this question is asking in a way that doesn’t demonstrate a bias or leaning for either party, I think the investigator should just stay out of this business entirely. And then they won’t risk demonstrating bias or leaning for either party.
Pettegrew: What recommendations do you have to mitigate potential large volume challenges based on alleged bias?
Richards: So I think there’s a few things institutions can do on this front. The first one is prophylactic. We need to be vetting our folks. And I want to be careful about this because it is absolutely the case that prior professional affiliation or professional pursuits are not on their own a basis for bias. But people who engaged in prior advocacy roles in the course of those roles may have made statements which would suggest that they may be biased. And this is absolutely something that you have to take on a case-by-case basis and evaluate whether or not the risk of any prior statements that you or a party may discover would lead to such a challenge outweigh having that person serve in that role on that case.
The other thing that I would suggest that we do is really discuss in our policies, or at least consider discussing our policies, the idea that prior professional pursuits aren’t alone a basis for challenging somebody on bias ─ that the allegation of bias has to be particularized. It basically has to describe how that alleged bias would affect this particular case.
And the third issue is we don’t want to be addressing issues of bias on appeal. We want to be addressing them on the front end. So you want to make sure that you’re giving parties plenty of notice about who the person is going to be. You can set reasonable deadlines to challenge this person on the basis of bias or a conflict of interest, and try and push as much of that into the front end of the process where you can fix it if you need to. Rather than pushing it into the tail end of the process, where repairing it may entail doing a lot all over again. To the point of, “Are we going to get a lot of these challenges?” I think only time will tell. And it may just be that the best thing that we can do is set ourselves up to be able to defend against these challenges, and people may make them one way or the other.
Pettegrew: Is it equitable for an institution to invite just anyone to serve as an advisor to a party who doesn’t have one? As a practical matter, it seems this person needs to be an attorney, especially if the other party has a seasoned litigator as their advisor.
Richards: Well, there’s a lot tied up in this question. And I know folks often feel very strongly about this. So I’ll try and answer this as best I can. The question that’s being asked, the second question: “As a practical matter, do they need to be an attorney?” Well, they don’t. As a practical matter, the regulation allows us to have somebody ask questions that were written by the party themselves, because that person’s role is to stand in the place of the party who’s not allowed to personally confront the other party.
Now, the other part of the question is, “Is that equitable?” And I think that’s a very difficult question to answer. It is absolutely inequitable as an objective matter to have somebody with a high-powered attorney on one side and somebody with no legal experience on the other side. The person with the high-powered attorney clearly has an advantage in that proceeding.
But I think what you have to ask yourself is, “What is the equity that you’re trying to resolve? What is the thing that you’re trying to accomplish?” Because we’re only appointing an advisor for cross. So clearly, I think a seasoned lawyer’s going to do a better job on cross than the person that we appoint. But that lawyer is also going to be involved in the whole process. They’re probably going to be involved in the initial interview. They’re going to be involved in gathering and characterizing evidence. They’re going to be involved in making arguments to the hearing officer about relevance. They’re going to be involved in the appeal. They’re going to make strategic recommendations throughout this entire process. If you’re talking about hiring a lawyer just for cross-examination, I’m not sure you’re addressing the inequity. So then you end up with a much bigger question, right? I mean, if you’re going to try and address the equity issue, then you’re not just talking about appointing an advisor for cross-examination as the regs require. You’re talking about appointing an advisor for the entire process. Sounds like a really burdensome undertaking for each case.
And if the goal here is to create a high degree of equity, that might be what you decided to do. But if the concern is simply that one party will have better cross-examination than the other, then maybe you address just part of the process there.
I think it’s a really tough nut to crack. I don’t think that addressing it in any of those three ways is entirely satisfactory. And I think institutions will all have individual decisions to make on this point, and they’ll all be different. So I think it’s a really hard problem. I think it’s a good question. And it’s one that I don’t have a definitive answer to.
Pettegrew: What if a student refuses an advisor?
Richards: Well, I’m not sure if the questioner is asking if they refuse a specific advisor. But if a student doesn’t select their own advisor of choice for purposes of cross-examination, then the institution has the right to select their advisor. And the student doesn’t have a choice in the matter. So we appoint an advisor, they ask questions on the student’s behalf. If the student doesn’t cooperate, then the strangeness of the regulation essentially requires the advisor to come up with questions on their own so that the other parties’ statements can all be subject to cross=examination. And that is a very odd configuration. But the answer is that we appointed [an] advisor to ask questions on their behalf, whether they want one or not.
Pettegrew: Does the advisor have to come up with questions or just read the questions the party wants? And if one party doesn’t appear at the hearing, but their institution-provided advisor must still cross examine the other party, does the advisor have to come up with those questions?
Richards: So the answer to the second question is yes. If one party isn’t appearing or participating, then there’s still an obligation for the other party to be subject to cross-examination for their statements to be under consideration. So the other advisor, the appointed advisor would have to come up with questions to ask.
If the party is participating, then I think this can sort of vary. I think the baseline principle is that the advisor asks the questions that the student would want asked of the other party. I shouldn’t say student. That the party would want asked of the other party. As a practical matter, if the advisor is more skilled and can contribute to that process and is willing to do so, that’s certainly not impermissible. But the baseline idea is that this advisor asks the questions that the other party comes up with.
Pettegrew: Are the hearing officer and the decision-maker the same person?
Richards: They can be. The decision-maker is identified by the regulations as the person who does really three things. And it need not be one person. The regs explicitly allow for a panel. And there’s some question about whether or not you could split up this role among different people at different stages. But essentially, the decision-maker has three functions. They make determinations about relevance of questions. They determine what facts are true and whether or not those facts constitute a policy violation. And they impose sanctions or remedies. So if you have a hearing where you have one person presiding and you call that person the hearing officer, then they are certainly the decision-maker for at least some, if not all of those functions.
Pettegrew: Has the Department of Education confirmed that an institution may break up the hearing outcome process — that is, outsource the hearing officer/decision-maker to determine responsibility, and then have someone in-house at the institution determine remedies or sanctions?
Richards: So I’ve mentioned in some of my other webinars that I have been told verbally by people at the Department of Education that we can break this function up into different people. I think a clean, faithful reading of the regulation as it’s written suggests that that’s not the case, although the regulation is not clear. I would certainly be much more comfortable with this if we had it in writing from the department. But I think that where there is an institutional imperative to break this function up, potentially because there’s a decision that we want the person presiding over the hearing and making relevancy determinations to be skilled at that, and the person making sanctioning decisions to have experience with that, and that combining those functions is a very difficult thing to do in one person. So we want to split it up into two different people. That so long as the institution is willing to tolerate a little bit of risk on that front, that risk may be tolerable because of the benefits of splitting that function up. But I don’t have this in writing yet. I’m hoping to get it. I have asked the department for it in writing. And certainly will be happy to share when I do, if I do.
Pettegrew: Do you recommend that students serve on hearing panels?
Richards: Boy, well the short answer is no. I don’t recommend that institutions use hearing panels at all. I think hearing panels are a really nice idea from the perspective of the student affairs profession and the educational function sort of consensus building. But I think that from a legal perspective, they’re a little bit of a nightmare. You have internal disagreement where you have two people think one thing, one person thinks something else. And that creates problems in the back end. The hearing panelists tend to email each other and create a written record of their decision-making process, even when you ask them not to. So I think that hearing panels themselves impose a fair bit of risk. And I think asking students to serve on them makes it somewhat worse. Students are more difficult to work with on things like privilege. If the hearing panel needs to be advised by counsel with respect to decisions that it’s making, particularly if you have lawyers involved on the party side, while it’s certainly not impossible to set the privilege up, it’s more difficult. And students also tend to go away when they graduate.
So if you have a senior on your panel, and they graduate, and you end up with an upset party and need to sort of gather evidence about the case to defend it, then sometimes those students are hard to find and don’t always respond. And I just think that creates issues where we need not create them. So I don’t recommend that students serve on hearing panels, but I recognize that many institutions have long histories of doing this and they have good reasons for doing so. So where that is the case, I think this is risk that we can manage. But do I recommend it? No, I do not.
Pettegrew: In a Title IX matter involving a faculty respondent, can the hearing outcome be a recommendation for discipline that is then sent to a separate process such as a faculty grievance process? Or must the Title IX hearing process replace the faculty grievance process?
Richards: I think the former is certainly true. I want to harken back to something that I spoke about earlier in the difference between remedies, the restoration of access, and sanctions, right? So if the hearing outcome is essentially a potential sanction, then the department doesn’t really care what we do. And that can certainly be a recommendation that goes into some other process.
I think it gets a little trickier if the hearing process results in a finding of responsibility, and the separate process is capable of undoing that finding of responsibility. That I think the department would have a bigger issue with.
The other potential snafu here is with respect to remedies, right? I mean, if there’s a finding of responsibility, then we need to provide remedies that will restore access to the complainant. And we can think of lots of situations in which those remedies might be punitive in nature. For instance, where the complainant is an employee whose only supervisor is the respondent. And the respondent’s only supervised employee is the complainant. Now in that situation, it may just be that both can’t continue in their respective roles. And if the second process is capable of undoing those remedies, then I think we may have a Title IX problem. But subject to those provisos, we can certainly say the sanctions awarded as part of this Title IX process is a recommendation of X that will go into this process. Or simply a recommendation that the faculty member be referred into another process, bring terminations of what final sanctions would be. I think that’s something that the department would not take a positive or negative view of, because they would say the kinds of sanctions that you impose are neither here nor there for us. All we care about is that if there’s a finding of responsibility, access to the programs and activities are restored for the complainant.
Pettegrew: If a respondent does not come to the hearing, how does the hearing officer or panel consider the cross-examination in their deliberations?
Richards: So there’s two pieces at issue here, right? One is the cross-examination of the complainant. And one is the cross-examination of the respondent. If the respondent doesn’t come to the hearing and the respondent can’t be cross-examined. So none of the respondent’s statements can be considered. That means the hearing officer would have to simply consider only the evidence that was presented by the complainant and witnesses that were subject to cross-examination.
So what about the complainant? Well, if the respondent doesn’t come to the hearing, as we talked about earlier, the institution is still required to provide an adviser sort of quote for the respondent who will conduct cross-examination of the complainant at the hearing, essentially solely for the purpose of subjecting the complainant’s statements to cross, so the hearing officer can consider them. So that’s basically how it would happen. If the respondent doesn’t come, none of their defense makes it into the consideration. And the hearing officer would probably decide the case solely on the complainant’s side of the story.
Pettegrew: Can a decision-maker ask questions during the hearing, or are only the party’s advisors able to do so?
Richards: The hearing officer can absolutely ask questions. And I think this is really the best practice. I think the way that we’re going to want to organize these hearings, both to make them efficient, and to sort of minimize the adversarial nature of them, is to have the decision-maker be very well versed in the facts, have reviewed the investigation and the report, and be prepared to ask all the questions that they think are relevant. Once they’ve asked those questions, then the parties will get the opportunity to have cross-examination. And it may be that some of that cross-examination becomes duplicative of what the hearing officer asks. Maybe they decide they don’t have to ask those questions because they’ve already been asked by the hearing officer. But I do think that certainly they can. And I think that they should.
Pettegrew: If a complainant had a forensic exam, are we required to produce the examiner for cross-examination at the hearing? And if we cannot, must we then disallow the examiner’s information, even if it’s in a written report? Alternatively, if the complainant does not appear at the hearing, does that mean the forensic exam can’t be considered?
Richards: Well, this really depends. And the answer is it’s not the forensic report that we’re sort of worried about per se. It’s the statements that are in it. And does this forensic report contain a statement by the complainant as to what happened prior to the examination? If so, that portion of the report can’t be considered by the hearing officer or by the decision-maker in making their decision, unless the complainant is subject to cross-examination about it. Does the report contain statements by the examiner with respect to what they found as part of a medical exam? If it does, then those statements can’t be considered without the medical examiner appearing for cross-examination about their statements. It may well be that the report that we’re talking about consists solely of a medical exam. It has nothing at all about statements from the complainant in it. If that were the case and the complainant didn’t show up, but the medical examiner did, presumably the whole report could be considered. So it really just depends on whose statements we need to have cross-examined, and then we can figure out who needs to be there in order for the report to be considered.
Pettegrew: Under our existing process, if a student respondent admits to the conduct alleged in the complaint, the matter would not go to hearing, and a single adjudicator would finalize a determination of responsibility and issue a sanction. Would this still be allowed under the regulations?
Richards: The way that I think you would have to structure this in order for it to be compliant is to fit it into a binary system set up by the department, right? The department has a formal grievance process that follows 106.45. This obviously doesn’t comply with that. Then it has an informal resolution process. It doesn’t describe what the informal resolution process has to be. It only requires that the parties be informed of what it is and that they provide knowing consent in writing to that process.
So I think if you wanted to have this sort of administrative resolution process, you absolutely could as one of your options under informal resolution. And if you did that, there’s no reason that I could see why this wouldn’t be compliant.
Pettegrew: Are parties entitled to advisors under informal resolution processes?
Richards: The department makes clear that students are entitled to the advisors of their choice as part of the entire process. And that’s also true under the VAWA amendments to the Clery Act. So I think really the right to an advisor attaches as soon as either a complainant is identified with respect to a report, or as soon as a respondent is notified that a complaint has been made against them, irrespective of how you resolve the case.
Pettegrew: Under an informal resolution process agreed to by the parties, can we offer a watered down hearing? And may we sanction the respondent under this informal process?
Richards: Yeah. So I think this relates to the question we had a few minutes ago on administrative resolutions. I don’t think that there’s anything that limits us from creating an informal resolution process that is essentially anything that we want it to be, so long as we have the party’s informed consent. So you could create a watered down if you want to call it that, or just a simpler, more straightforward, more efficient process without all the sort of evidentiary issues as the 106.45 process. So as long as you describe that process, and exactly how it’s going to work to the parties, and they provided their informed consent, I do think that would be compliant as an informal resolution.
Pettegrew: Do the appeals processes from complaint dismissals and from hearing outcomes have to be the same?
Richards: The regulation provides the same three grounds for appeals. Whether it was a dismissal of a formal complaint, predetermination, or from a determination regarding responsibility. But it doesn’t say that we have to offer the same process. So I could certainly see given the far more limited record, having sort of an expedited appeal process for dismissals of formal complaints, and a more involved, detailed process for determinations regarding responsibility. So I think in short, the answer to the question is no, they don’t have to be the same under the plain language of the rule.
Pettegrew: And that will do it for today. Thank you to everyone for participating. And a special thanks to our speaker, Josh Richards. We hope you found this program helpful. And remember, the recording will be posted soon on EduRisk Solutions. This concludes the webinar, and you may disconnect.