The new Title IX regulations, adopted in the midst of COVID-19’s fierce imposition on society as a whole, and education in particular, are set to become effective in less than two weeks – August 14, 2020.  While there are a multitude of new processes and procedures in the new Title IX regulations, one of the most significant, unprecedented, and comprehensive changes for postsecondary institutions is the new paradigm for how educational entities must respond to formal complaints.  Postsecondary institutions are required to provide live grievance hearings for formal Title IX complaints.  Under the new Title IX regulations, live grievance hearings will have many of the trappings of a courtroom.  If your educational institution has not taken into account the implications flowing from the live hearing requirements that mirror courtroom procedures, let’s highlight some of them.

Objective Evaluation of Relevant Evidence

 “Inculpatory” and “exculpatory” evidence are terms I suspect education administrators have never heard within the educational context.  However, the new Title IX regulations dictate that educational institutions require “an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence” as part of the grievance process.  In sum, “inculpatory” evidence in the educational context would be any information that would be favorable to the complainant.  “Exculpatory” evidence would be any information that would be favorable to the respondent.  Thus, educational institutions should evaluate information that could be favorable to either party objectively.

Standard of Evidence

Educational institutions must designate the standard of evidence to be used in determining responsibility for allegations of Title IX violations.  Standards of evidence are commonly used terms in courtrooms.  While utilizing a standard of evidence is not new to the Title IX process, it remains difficult for some education administrators and other related school officials to grasp the meaning and purpose of a standard of evidence.  Education institutions may choose the “preponderance of the evidence standard” or the “clear and convincing evidence standard.”  The “preponderance of the evidence standard” means that it is more likely than not (greater than 50%) that the alleged events constituting the Title IX violation occurred.  The “clear and convincing evidence standard” means that the information presented in support of the alleged Title IX violation is substantially more likely to be true than untrue (substantially greater than 50%).  The “clear and convincing evidence standard” is more strict than the “preponderance of the evidence standard,” but education institutions have the discretion to determine which standard they will use.  Education institutions should be aware that once the evidence standard is selected, they will have to apply that same evidence standard to all formal complaints of sexual harassment.

Burden of proof

The term, “burden of proof” is a common term used in courtrooms, but it is also required to be utilized in the grievance process for Title IX.  The “burden of proof” is the responsibility to establish or prove facts in dispute.  When investigating a Title IX allegation and throughout the grievance process, the educational institution has the “burden of proof” and the burden of collecting sufficient evidence to establish responsibility.  Neither the complainant nor the respondent has the responsibility to prove or to disprove the sexual harassment claim.

Fact and Expert Witnesses

Educational institutions are required to allow both parties to use fact and expert witnesses.  While fact witnesses are not new to Title IX, the inclusion of “expert” witnesses is a new concept that mimics the courtroom.  Including “expert” witnesses opens the door to a variety of potential intricacies never experienced as part of a campus grievance hearing.

Attorneys Allowed as Advisors

Previously, parties were not entitled to have representation throughout the Title IX process.  Now, educational institutions must allow the parties to have an advisor that may be but is not required to be an attorney, present throughout all related facets of the grievance process.  Educational institutions must send evidence gathered in support of the investigative report to both parties and to their advisors.  This is like court cases where individuals are entitled to representation throughout the process, and those who are involved copy each party’s attorney on all pleadings and correspondence.

Cross-examination

Allowing for cross-examination is a major tenet of adversarial courtroom proceedings.  Now, postsecondary institutions must allow for the cross-examination of witnesses, and the cross-examination must be done by the complainant’s or respondent’s advisor.  Complainants and respondents are expressly prohibited from cross-examining a witness.  Similarly, in court cases, attorneys usually conduct all witness examinations, including cross-examinations.

Advisors Required for Live Hearings

The new Title IX provisions require educational institutions to provide advisors, at no cost or fee, for parties who don’t have advisors at the Title IX live hearing to conduct cross-examination.  In addition, the complainant or the respondent has the discretion to choose the advisor that the educational institution is required to provide for them at the live hearing.  This is the same type of entitlement that is given to criminal defendants who are not able to hire their own attorney.  Just like the State is required to provide an attorney for a criminal defendant if they do not have one, educational institutions are required to provide advisors at Title IX live hearings for parties who don’t have an advisor. 

While the new Title IX regulations impose comprehensive significant changes to how Title IX must be handled on education campuses throughout the country in general, these various “courtroom-esque” requirements may prove to be particularly difficult to navigate for education officials.  For this reason, it will be very important for educational institutions to solicit assistance from subject matter experts to properly implement each of the grievance processes that mirror courtroom proceedings.