By: Christopher D. Carusone and Ashling A. Ehrhardt
No one would have bet that the Department of Education would have released the new Title IX regulations amid a pandemic. As colleges were scrambling to adjust to the new normal of virtual learning—and all of the challenges that brought—the Department of Education dropped another bombshell May 6 with the issuance of its final rule, requiring that schools be compliant by Aug. 14. For all colleges still revising your sexual misconduct policies to ensure timely compliance, here are some reminders:
- Formal Complaint—As attorneys, we think of a formal complaint as a numbered paragraph document that is very legalistic. The good news is that this “formal” complaint is not so formal. The purpose is to ensure that the school has a written document stating the complainant wants an investigation to begin. The document also has to describe the allegations and be signed by the complainant. “Signed” has some leeway, too, either a physical or digital signature or a statement that the complainant is filing the complaint. The complaint can be filed in person, by mail or by email to the Title IX coordinator, as well as by any other method a college chooses.
- Written Notice of Allegations to Parties—Once a complainant files a formal complaint, the first order of business is to send a written notice of the allegations to both parties, which must be sent before any initial interviews. There are strict requirements as to what this notice must state. First, it must describe the key details of who, what, where and when. The notice must also provide that the respondent is presumed innocent and outline the potential sanctions if the respondent is found responsible. It must advise that parties can select an advisor of their choice, who can be an attorney. The notice must also state that parties can request to inspect and review all evidence. In addition, the notice must contain information regarding false statements and the Code of Conduct.
- Mandatory Dismissals—Gone are the days when colleges felt obligated to investigate every single allegation of sexual harassment—no matter where it occurred. Effective Aug. 14, if the complaint alleges sexual harassment that happened outside of the United States, the college must dismiss it. Similarly, if the conduct alleged does not meet the definition of sexual harassment or did not occur within the school’s education program or activity, the college must dismiss it. In the case of any dismissal, the college is required to give written notice with its reasons for the dismissal. Revised policies should include language to this effect. If your college would like to ensure that the conduct in question is still addressed, you can include language that the Code of Conduct would govern instead of Title IX.
- Making Evidence Available for Review—Previously, schools could and would often limit the evidence made available to parties and advisers. Not anymore. If evidence is directly related to the allegations raised in the complaint, colleges must allow parties and advisers to inspect and review the evidence obtained by the college. This includes documents and notes from interviews with parties and witnesses, as well as evidence the school does not plan to use. It is important that your revised policy addresses this point.
- Draft Investigative Report—There are a few things to keep in mind when it comes to the draft investigative report. First, you must provide the report to the parties for review and comment, with parties getting ten days to respond. Your college must also consider any response received before it finalizes the report, which is required to be shared with the parties at least ten days before the hearing.
- Adviser—Each party may be accompanied by one adviser of their choosing during all aspects of case preparation up to and throughout the hearing. The adviser can be a source of personal and moral support to the student and can be, but does not have to be, an attorney. Other than cross-examination or testifying at the hearing as a witness, advisers will not speak or otherwise participate on behalf of the student. The parties are expected to respond to questions on their behalf, without representation by their adviser. Your revised policy must include language offering to provide an adviser of your college’s choosing, at no cost, to a party that does not have one, for the purpose of conducting cross-examination at the hearing.
- Live Hearing—If your policy did not include a live hearing, it will now. Thankfully, “live” does not necessarily mean “in-person,” as many colleges are going remote for the upcoming academic year or doing a hybrid of in-person and remote classes. If any party requests, the hearing can be held with the parties in separate rooms with the necessary technology to see and hear each other. It would be prudent to include a time frame by which any such request must be made. Colleges also have the discretion to allow any or all parties, witnesses, and other participants to appear at the hearing virtually. If your college has not yet done a Title IX hearing by Zoom, get ready—you will soon.
- Cross-Examination—Yes, this is happening despite the flurry of cases filed objecting to the new regulations. Advisors can cross-examine the other party and all witnesses during the hearing. You should consider including language in your revised policy about the respectful manner in which cross-examination should be done. Cross-exam must be asked “in real time” with back and forth questions. It can also include questions about credibility. The chair of the hearing panel will decide if each question is relevant before a party or witness has to answer it. If the chair decides to exclude a question as not relevant, the chair must explain why. You may want to include language in your policy about how objections will be addressed.
- Participation—Every person has the right to choose to participate in any part of the grievance process. No person will be forced, threatened, coerced, or discriminated against for not participating. Colleges cannot draw any inference from a person’s decision not to participate. If a party or a witness chooses not to appear at the hearing or chooses not to answer cross-examination questions, the consequences are great: the chair of the hearing panel must exclude the statements made by that party or witness and evaluate only evidence that does not involve those statements.
- Appeals—Be sure that your revised policy offers appeal rights to both parties. You must advise the parties in writing of the appellate process. Appeals must state the explicit grounds for the appeal, based on one of the following:
- A procedural error or omission occurred that impacted the outcome of the hearing
- Newly discovered evidence, unknown or unavailable during the original hearing or investigation that could affect the outcome
- A conflict of interest or bias of Title IX personnel that affected the outcome
Your school may also want to include additional grounds for appeal, such as the sanctions imposed were substantially disproportionate to the severity of the violation.
Pandemic or not, be sure that your Title IX policies are compliant by Aug. 14. If you need any assistance, contact counsel to ensure compliance.
Christopher D. Carusone chairs the government law and regulatory affairs group and serves as co-chair for the internal investigations group at Cohen Seglias Pallas Greenhall & Furman. He advises clients on internal investigations involving Title IX and student conduct, and allegations of waste, fraud, and misconduct. Carusone can be reached at firstname.lastname@example.org and 717-480-5306.
Ashling A. Ehrhardt is an ATIXA-certified Level One Civil Rights investigator who conducts investigations into allegations of sexual misconduct, discrimination, and harassment at institutions of higher education. She also represents students in Title IX cases across the country. Ehrhardt can be reached at email@example.com and 267-238-4761.
Reprinted with permission from the August 6, 2020 edition of “The Legal Intelligencer” © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.