How the Updated Title IX Regulations have Impacted ......PowerPoint (a) should not be considered legal advice, (b) does not create a lawyer-client relationship, and (c) should not

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© Copyright 2020 Saul Ewing Arnstein & Lehr LLP

How the Updated Title IX Regulations have Impacted… Conduct Proceedings

Joshua W.B. Richards

Vice Chair, Higher Education Practice

June 9, 2020


The provision and receipt of the information in this PowerPoint (a) should not be considered legal advice,

(b) does not create a lawyer-client relationship, and (c) should not be acted on without seeking professional counsel who have been informed of the specific facts.

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Conduct Proceedings

• Determined that reported conduct meets the definition for Sexual Harassment

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Conduct Proceedings

• Conducted an investigation compliant with § 106.45(b)(2) and (b)(5), including creating a report and providing it to the parties.

• What now?


Consolidate (Or un-consolidate) Proceedings?

• A recipient may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.

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Live Hearing

• For postsecondary institutions, our grievance process must provide for a live hearing. § 106.45(b)(6)(i) Live participation by parties who can hear

and see one another, with real-time, oral questioning


Decision Maker

• The decision-maker “cannot be the same person(s) as the Title IX Coordinator or the investigator(s).” § 106.45(b)(7)(i)

• Must “not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” § 106.45(b)(1)(iii)

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Decision Maker

• No requirement that the decision-maker is: Internal or external

Attorney or nonattorney

A panel or single person

The same person (or kind of person) for student/faculty/staff processes

[The same person for responsibility/ sanctions?]


Evidence

• We “must make all [inculpatory and exculpatory evidence] . . . available at any hearing to give each party equal opportunity to refer to such evidence during the hearing . . .” § 106.45(b)(5)(vi)

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Advisors

• Parties have the right to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney.

• We may not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding.


Advisors

• We may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.

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Cross Examination

• At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.

• Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice.


Cross Examination

• If a party does not have an advisor present at the live hearing, we must provide an advisor of our choice to conduct cross-examination on behalf of that party (at our own expense).

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Provided Advisor

• Advisor of our choice need not be, but may be, an attorney. Purpose: to subject testimony and statements

of witnesses and parties to cross examination


Provided Advisor

• Advisor of our choice need not be, but may be, an attorney. Not the purpose: to provide legal

representation. • “§ 106.45 does not attempt to incorporate

protections constitutionally guaranteed to criminal defendants such as the Sixth Amendment right to confront accusers face to face, the right of self-representation, or the right to effective assistance of counsel

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Provided Advisor Considerations

Internal or external?

Attorney or not?

Provide more than just cross examination?

Provide a single option or a panel for choice?

If external, pay structure? Shared pool?

Are there (non-regulatory) issues of equity when one party has hired an attorney?

Mechanics of what questions will get asked absent participation by a party?


Cross Exam – Relevance

• Before a party or witness answers a question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.

• Only exceptions to relevance standard: Rape shield protection;

Legally-recognized privilege; and

Hearsay

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Cross Exam – RelevanceRape Shield Protection

• Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant,

• unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the

conduct alleged by the complainant, or

if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.


Cross Exam – Statements

• If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on anystatement of that party or witness in reaching a determination regarding responsibility Read this to be an “all or nothing”

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• “Because party and witness statements so often raise credibility questions in the context of sexual harassment allegations, the decision-maker must consider only those statements that have benefited from the truth-seeking function of cross-examination.”



• The prohibition on reliance on “statements” applies not only to statements made during the investigation or hearing, but to any statement of a party or witness who does not submit to cross-examination. E.g. a SANE report, admission during an

interview, incriminating emails and texts, conversations with other witnesses, etc.

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• Bottom line: “written statements cannot be relied upon unless the witness submits to cross-examination, and whether a witness’s statement is reliable must be determined in light of the credibility-testing function of cross-examination, even where nonappearance is due to death or post-investigation disability.”



• “Statements” has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions.

• A respondent’s alleged verbal conduct, that itself constitutes the sexual harassment at issue, is not the respondent’s “statement” for this purpose

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Statements Questions by Decision Maker “the same exclusion of statements does not

apply to a party or witness’s refusal to answer questions posed by the decision-maker. If a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements”

Confusing, but best interpreted to apply to statements that have already been subject to cross (since that is a pre-requisite).



• What about investigation reports containing such statements? Report must “fairly summarize[] relevant

evidence”

Presumably be reviewed by decision maker

May not know at that time whether a witness will “submit to cross examination”

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Effect of Failure to Appear

• Where one party appears at the hearing and the other party does not, the non-appearing party’s advisor may appear and conduct cross-examination even when the party whom they are advising does not appear.



• “The final regulations do not purport to grant recipients the authority to compel appearance and testimony.” “No recipient or other person may intimidate,

threaten, coerce, or discriminate against any individual . . . because the individual has . . . refused to participate in any manner in an investigation, proceeding, or hearing under this part.” § 106.71

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• Where one party and their advisor both do not appear, an advisor provided by us must still cross-examine the appearing party “on behalf of” the non-appearing party, resulting in consideration of the appearing party’s “statements”



• The decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.

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Let’s pause for questions …


Virtual and Remote

• Live hearings may be conducted with all parties physically present in the same geographic location or, at the recipient’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

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Standard of Proof

• Permitted to use either clear and convincing evidence standard or preponderance of the evidence standard


Transcript or Recording

• We must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.

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Standard of Proof

• But we must apply the same standard of evidence for formal complaints against students as for

formal complaints against employees, including faculty, and

apply the same standard of evidence to all formal complaints of sexual harassment

§ 106.45(b)(1)(vii)


Written Determination (1/2)

• Identification of conduct code sections alleged to have been violated;

• A description of the procedural steps taken from the receipt of the complaint through the determination;

• Findings of fact supporting the determination;

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Written Determination (2/2)

• Conclusions regarding the application of the code of conduct to the facts;

• Statement of rationale for, the result as to each allegation, including any findings of responsibility and sanctions;

• Remedies provided to the complainant;

• The recipient’s procedures and permissible bases for the parties to appeal.


Sanctions and Remedies

• Where a respondent has been found responsible for sexual harassment, any disciplinary sanction decision rests within the discretion of the recipient, although the recipient must also provide remedies, as appropriate, to the complainant designed to restore or preserve the complainant’s equal educational access. § 106.45(b)(1)(i).

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• Sanctions may not be imposed until a “final” determination is made; A “final” determination means the written

determination containing the information required in § 106.45(b)(7), as modified by any appeal by the parties. § 106.45(b)(7)(iii)

• Meaning until after an appeal has decided or the time to file one has run



• Be wary of imposing sanctions or remedies that may be outside the authority of the Title IX process

• Ensure that the remedies, as opposed to any sanctions, restore access to the educational program and activities

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Appeal

• Must offer both parties an appeal from a determination regarding responsibility, and from a recipient’s dismissal of a formal complaint. Note: no mandatory appeal right re

sanctions or remedies


Appeal – Required Bases

• Procedural irregularity . . .

• New evidence that was not reasonably available at the time of determination . . .

• Conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent . . .

. . . that affected the outcome of the matter.

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Appeal – Optional Bases

• So long as they are equitable to both sides, additional grounds for appeal may be added, e.g.: Appropriateness of sanctions

• Might this change internal/external model for decision-maker?



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Alternative Resolution

• At any time before reaching a responsibility determination, we may facilitate an informal resolution process

• May not require the parties to participate in an informal resolution process and

• May not offer an informal resolution process unless a formal complaint is filed



Obtain the parties’ voluntary written consent;

Provide written notice disclosing:• The allegations;

• The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations,

• Consequences from informal resolution process, including records that will be maintained or could be shared.

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• Any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint

• May not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student


Outcome Notification –Respondents

• “The recipient must keep confidential the identity of . . . any individual who has been reported to be the perpetrator of sex discrimination, any respondent . . . except as may be permitted by . . . FERPA . . . or as required by law, or to carry out the purposes of [the Title IX regulations], including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.” §106.71(a)

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Training

• All materials used to train Title IX personnel must be publicly available on the school’s website. May mean that the school has to secure

permission from the training’s copyright holder to publish;

If unable to secure permission to post copyrighted training materials, then the school must create or obtain training materials that can lawfully be posted.


Records

• All records pertaining to our responses to reports, including our responsive supportive measures and resolutions materials, must be retained for seven years.

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No Hearing Required

• Recipients that are not postsecondary institutions may, but need not, provide for a hearing. § 106.45(b)(6)(ii)

K-12 Schools

Independent Schools

Academic medical centers


No Hearing Required

• With or without a hearing, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

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Equitable Process Add-Ons

• Hearing Procedures can be added to 106.45 so long as they don’t take away from procedural protections and are equitable. “[A]ny rules a recipient adopts to use in the

grievance process, other than those necessary to comply with § 106.45, must apply equally to both parties.”



• Examples of potential options: All-virtual hearing process?

Process to address relevance before hearing?

More specific rules of relevance (e.g. duplicative questions, character evidence)

Practice when a party does not have an advisor for cross?

Conferences with advisors during a hearing

Order of questioning at hearing?

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• Examples of potential options: Process for determination of consolidated

allegations?

Rules of decorum for hearing?

Excusing, replacing, and/or banning advisors?

Hearing officer vs. sanctioning officer vs. hearing administrator

Equity in presumptions?



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Joshua W.B. [email protected]

215.972.7737

Questions


BaltimoreLockwood Place

500 East Pratt Street, Suite 900 Baltimore, MD 21202-3171

T: 410.332.8600 • F: 410.332.8862

Boston131 Dartmouth Street

Suite 501Boston, MA 02116

T: 617.723.3300 • F:617. 723.4151

Chesterbrook1200 Liberty Ridge Drive

Suite 200 Wayne, PA 19087-5569

T: 610.251.5050 • F:610.651.5930

Fort Lauderdale200 E. Las Olas Blvd.

Suite 1000Fort Lauderdale, FL 33301

T: 954.713.7600 • F: 954.713.7700

HarrisburgPenn National Insurance Plaza

2 North Second Street, 7th Floor Harrisburg, PA 17101-1619

T: 717.257.7500 • F: 717.238.4622

MiamiSoutheast Financial Center

200 S. Biscayne Blvd., Suite 3600Miami, FL 33131

T: 305.428.4500 • F: 305.374.4744

NewarkOne Riverfront Plaza Newark, NJ 07102

T: 973.286.6700 • F: 973.286.6800

PhiladelphiaCentre Square West

1500 Market Street, 38th FloorPhiladelphia, PA 19102-2186

T: 215.972.7777 • F: 215.972.7725

PittsburghOne PPG Place

30th FloorPittsburgh, PA 15222

T: 412.209.2500 • F:412.209.2570

Washington1919 Pennsylvania Avenue, N.W.

Suite 550 Washington, DC 20006-3434

T: 202.333.8800 • F: 202.337.6065

West Palm Beach515 N. Flagler Drive

Suite 1400West Palm Beach, FL 33401

T: 561.833.9800 • F: 561.655.5551

Wilmington1201 North Market Street

Suite 2300 • P.O. Box 1266 Wilmington, DE 19899

T: 302.421.6800 • F: 302.421.6813

Chicago161 North Clark

Suite 4200Chicago, IL 60601

T: 312.876.7100 • F: 312.876.0288

New York1270 Avenue of the Americas,

Suite 2005 New York, NY 10020

T: 212.980.7200 • F: 212.980.7209

Princeton650 College Road East, Suite 4000

Princeton, NJ 08540-6603 T: 609.452.3100 • F: 609.452.3122

Minneapolis33 South Sixth Street, Suite 4750

Minneapolis, MN 55402 T: 612.217.7130 • F: 612.677.3844

Documents

How the Updated Title IX Regulations have Impacted ......PowerPoint (a) should not be considered legal advice, (b) does not create a lawyer-client relationship, and (c) should not