Skip to main content

Title IX Advisor Training

Fall 2020

VIEW SLIDESHOW (PDF)

What is Required under the Final Rule?

A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent.

Title IX Sexual Harassment Section 106.30

  • Conduct on the basis of sex that satisfies one or more of the following:
    • (i)An employee conditioning education benefits on participation in unwelcome sexual conduct (i.e quid pro quo); or
    • (ii)Unwelcome conduct that a reasonable person would determine is so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
    • (iii) Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in VAWA

Title IX Jurisdiction

  • Institution’s program or activity the United States
  • Institution property
  • Institution sponsored or affiliated events [substantial control is key]
  • Buildings owned or controlled by officially recognized student organizations

USG Complaint Process

  • A report of misconduct has been made
  • The Complainant or the Title IX Coordinator has initiated the formal investigation process
  • Notice of the investigation has been sent to the parties
  • The assigned investigator(s) have made preliminary determinations
  • The parties and the institution have been unable to reach an informal resolution

The Live Hearing Requirement Section 106.45(b)(6)

  • The Final Rule mandates a bifurcated process
  • Final determinations of responsibility and sanctions are made by decision-makers
    • CANNOT be the Title IX Coordinator or assigned investigator
    • Informal resolution not permissible for student allegations against an employee
  • New due process considerations
    • Cross examination by a party’s advisor
    • Relevancy determinations
    • Impact of party or witness refusal to submit to cross-examination
  • Institutions must provide an advisor if a party does not have one

Adjudication Processes

  • Students
    • All matters not informally resolved will be heard by a Hearing Panel
    • Hearing Panels comprised of trained faculty and staff
  • Employees
    • Title IX matters not informally resolved will be heard by a single decision-maker or panel
    • Sexual Misconduct matters not informally resolved will be resolved according to established institutional procedures
      • Institutions may choose to offer a hearing or utilize single decision-maker

Advisors at Title IX Hearings 106.45(b)(6)

  • Provide advice, counsel, and support to a party
    • Students or employees
  • Perform cross examination of other party and any witnesses
  • Institutional advisors assigned at the hearing stage

What is Cross Examination?

  • Questions raised to an opposing party or witness called by the opposing party
  • Used to advance claims or defenses of a party
  • Used to assess the credibility of an individual
  • USG Expectation: Respect, dignity, decorum

Typical Order of a Hearing

  • Opening by Decision Maker
  • Opening statements by both parties
  • Questioning of the Complainant
    • By the decision maker or panel 
    • By other party (through their advisor)
  • Questioning of the Respondent
    • By the decision maker or panel 
    • By other party (through their advisor)
  • Questioning of any Witnesses
    • By the decision maker or panel 
    • By the parties (through their advisor)
  • Closing statements by both parties
  • Closing by Decision Maker

Preparing for the Hearing

  • Review the Sexual Misconduct Policy and appropriate procedures
  • Review the investigation report and provided materials
  • Communicate with your assigned party
    • Drafting questions
    • Addressing procedural inquiries

Hearing Logistics

  • Hearings may be conducted in-person or via videoconferencing
    • Ensure you know how to use the technology as well
  • At the request of either party, the parties must be permitted to be in separate rooms 
  • All directly related information will be available 
  • All hearings must be recorded

Evidentiary Considerations

  • The burden of proof AND burden of gathering evidence is on the institution
  • Parties are permitted to present evidence and call witnesses to advance their claims and defenses
    • In Title IX Hearings that may include fact or expert witnesses
    • Permitted to establish the weight given to certain types of evidence

Relevancy Determinations During Title IX Hearings

  • Prior to any question being answered, relevancy will be determined
  • The Hearing Officer will provide the reason for excluding the question or evidence
  • Rebuttals may not be permitted

Assessing Relevancy

  • Relevant
    • Prior to any question being answered, relevancy will be determined
    • The Hearing Officer will provide the reason for excluding the question or evidence
  • Irrelevant
    • Questions and information regarding the Complainant’s sexual history or sexual predisposition unless to prove
      • Someone else other than the Respondent committed the alleged misconduct
      • Consent between the parties

Other Evidentiary Exclusions

  • Legally privileged information is protected
  • A party’s treatment records cannot be used without their voluntary, written consent
  • Duplicative evidence may be deemed irrelevant
  • If an individual does not submit to cross examination, at a Title IX hearing, their statements cannot be relied upon

Standard of Evidence

Decisions regarding student and employee alleged misconduct are based on a preponderance of the evidence

The Written Decision Section 106.45(b)(7)

  • Provided to both parties simultaneously must include:
    • The allegations
    • The procedural steps from the complaint through determination
    • Findings of fact supporting the determination
    • Determinations regarding responsibility, sanctions (and remedies) along with the supporting evidence and rationale
    • Information on the appeals process

Expectations of USG Advisors

  • Be willing to advise any party, Respondent or Complainant
  • Actively engage and be attentive during the hearing
  • Adhere to Board and institutional policies and procedures