Title IX Coordinator Training Online Course
Class Three:
The Grievance Process – Hearings & Appeals

Marjory Fisher
Associate Vice President & Title IX Coordinator, Columbia University
Melinda Grier
Melinda Grier Consulting
Janet P. Judge
Education & Sports Law Group

PLEASE NOTE: Training Course Only. Does Not Constitute Legal Advice.

Class Overview
Relevance Redux & Conclusion
Other Violations
Due Process / Fundamental Fairness
Credibility Determinations
Advisors
The Written Determination
Appeals

Relevance
Review and Completion

Relevance Redux
The Title IX regulations do not:
Adopt the Federal Rules of Evidence.
Define “relevance.”
Permit excluding evidence that:
Concerns prior bad acts.
Constitutes character evidence.

What is Relevant?

Evidence is relevant if:

It has any tendency to make a fact more or less probable than it would be without the evidence; and

The fact is of consequence in proving or disproving the allegations.

A determination regarding relevancy can rely on logic, experience or science.

The following evidence may not be used or considered relevant:
Treatment records without consent.
Protected by a legally recognized privilege.
Questions of evidence about a complainant’s sexual predisposition, and questions or evidence about a complainant’s prior sexual behavior unless it meets one of two limited exceptions.
Is made by a party or witness who does not submit to cross-examination. Currently, not enforced by OCR but may apply under state law or law in some federal circuits.

There is a difference between the admission of relevant evidence, and the weight, credibility, or persuasiveness of particular evidence.
Because § 106.45 does not address how relevant evidence must be evaluated for weight or credibility by a decision-maker, an IHE can adopt and apply its own rules so long as:
The rules do not conflict with § 106.45; and
The rules apply equally to both parties.
For example:
An IHE may, e.g., adopt a rule regarding the weight or credibility (but not the admissibility) that a decision-maker should assign to evidence of a party’s prior bad acts, so long as its rule applies equally to the prior bad acts of complainants and the prior bad acts of respondents.
REMEMBER: An IHE’s investigators and decision-makers must be trained specifically with respect to “issues of relevance” and any relevance rules adopted by the IHE should be addressed in the IHE’s publicly available training materials.

Admission vs.
Weight, Credibility, or Persuasiveness

All Relevant Information Is Not Created Equal
May weigh evidence
Considerations:
Is it corroborated?
Is there a reason the source might not be reliable?
Is it logical given other established facts?
The Regs require the decision-maker to objectively evaluate only ‘‘relevant’’ evidence during the hearing and when reaching the determination regarding responsibility.
The decision-maker must determine the relevance of each cross-examination question before a party or witness must answer.
“Not probative of any material fact.”

Violations of Other Policies

Violations of Other Policies
Knowingly making false statements or submitting false information
Being alert to potential claims of retaliation
Sexual Harassment not covered in the regulations but violating campus policies
Violations occurring in programs or at locations outside the current definition
Violations that don’t meet the standards under the regulations
Student Conduct violations
Employee Conduct standards

Update notice with later-discovered allegations.

Due Process (Fundamental Fairness)

A Fair Process:

that follows the law,

The Process That Is Due

is implemented without bias, stereotypes
or pre‐judgment, and

provides an equal opportunity for parties to be heard and present evidence,

allows the decision‐maker(s) to reach a
determination consistent with the standard of evidence.

Title IX Sexual Harassment Grievance Process: Elements of “Due Process”
Notice to the Respondent of the allegations
Opportunity to respond
Adequate opportunity to prepare before responding
Notice to the Parties of the process that will be used, including appeals
Opportunity to present evidence and witnesses
Cross‐examination, including questioning of witnesses
Live hearing (in separate spaces upon request and as appropriate)
Opportunity to have advisors of choice

State the Standard of Evidence
Same standard of evidence for all. Either:
Preponderance of the evidence, i.e.,
more likely than not; or
Clear and convincing evidence, i.e.,
substantially more likely to be true than not.
And Not:
Beyond a reasonable doubt (no other reasonable explanation possible – criminal cases).

Credibility Determinations

Considerations

What evidence is most believable?
Corroborating evidence
Other testimony
Physical evidence
Consider faulty memories
Explore reasons for inconsistencies
There are no “perfect” witnesses, complainants or respondents

Factors to Weigh

Consider each material fact separately.
Credibility as to the facts:
Credibility on one fact doesn’t make all of that person’s testimony credible, and
Lack of credibility on one point doesn’t make all of that person’s testimony non‐credible.
Does the testimony feel rehearsed or memorized?
Is the testimony exactly the same as another witness?
Does the testimony make sense?
Is the testimony detailed, specific & convincing? If not, is there a reason?
Is it a statement against interest?
Less credible witness isn’t necessarily being dishonest.

Caution
Eyewitness accounts
Bias/Assumptions about witness credibility that may not take account of cultural norms or may stereotype.
Assumptions about memory that may not reflect witness experiences.
Failure of decision‐maker to explain credibility determinations.

The Decision-
Maker (Hearing Officer)

Getting Ready
Self‐identify any conflict of interest or bias.
Prepare, prepare, prepare.
Read the report carefully and repeatedly, but don’t prejudge.
Understand the conduct at issue and the elements of the alleged violations.
Identify areas of agreement and disagreement.
Determine if there are areas that require further inquiry, e.g., did the investigator explore & consider all the relevant evidence?

Hearing Decorum

Points to Consider: May have rules that:
Require advisors be respectful and prohibit abusive/intimidating questioning.
Deem repetition of the same question irrelevant.
Allow for removal of advisors.
Specify any objection process.
Govern the timing and length of breaks to confer, and prohibit disruption.
Require that parties make any openings and closings.
Who will enforce the rules of decorum?
How will you train decision‐makers?

Advisors

Advisors

Parties must have the opportunity to have an advisor present during any grievance proceeding (hearing or related meeting).
A party may choose not to have an advisor.
However, the institution must provide an advisor to question and cross‐examine witnesses if the party isn’t accompanied by one.
Institutions may require parties to provide advance notice of their advisor’s attendance.
What if they are a no‐show?
Advisor provided by institution need not be an attorney.
Need not be of “equal competency.”
May establish guidelines for advisors.
Role of advisors in hearings and meetings.
Use of non‐disclosure Agreements.

More on the Advisor’s Role
Provide support and advice to the party.
Understand the allegations and the process.
Understand the purpose and scope of questioning and cross‐ examination.
Ask questions that elicit relevant information.
Wait for relevancy determinations after asking a question.
Adhere to rules of decorum and encourage the party to do the same.
NOTE: Institutions may remove disruptive advisors … carefully.

Working with the Parties’ Attorneys

Advisor or Legal Representative
Clarify procedures and role in advance.
Distinguish between advisor and legal representative.
Emphasize the “ground rules” ‐
provide any rules of decorum.
Establish lines of communication and points of contact.

Written Determination

Written Determination
Identification of allegations potentially constituting sexual harassment
Description of the procedural steps
Findings of fact supporting the determination
Conclusions regarding the application of the code of conduct/policy to the facts
Statement of and rationale for the result as to each allegation, including sanctions and whether remedies will be provided
Appeal procedures and grounds

Appeals

Appeals

Must provide an appeal from a determination of responsibility and dismissal of a formal complaint, based on:
Procedural irregularities that affected the outcome.
New evidence not reasonably available at the time of determination that could affect the outcome.
Bias or conflict of interest of the Title IX Coordinator, investigator or decision‐maker that affected the outcome.
Inappropriate or impermissible dismissal of any formal complaint or allegation.
May include other grounds, equally available to both parties.

Appeal Process
Notify other party upon receipt of appeal.
Appeal decision‐maker can’t be Title IX Coordinator, investigator or hearing decision‐maker.
Opportunity for both parties to submit written statement.
Written decision with the result and rationale simultaneously to both parties.

Questions?

Note
The content of this presentation is to provide news and information on legal issues and all content is provided for informational purposes only and should not be considered legal advice.

The transmission of information in this presentation does not establish an attorney‐ client relationship with the recipient. The recipient should not act on the information contained in this presentation without first consulting retained legal counsel.

If you desire legal advice for a particular situation, you should consult an attorney.