Appeals

1. I. Mandatory Opportunity for Appeals

   1. IHEs must allow both parties to appeal:
      1. a determination regarding responsibility
      2. a dismissal of a formal complaint
         § 106.45(b)(8).
   2. The regulations suggest that informal resolution agreements should be treated as binding contracts and are not appealable. (§ 106.45(b)(9), p. 30405).

2. II. Grounds for Appeal

   1. Either party can appeal a determination or dismissal on the following grounds:
      1. procedural irregularity that affected the outcome of the matter;
         1. Procedural irregularity could include an IHE’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. (p. 30249).
         2. Parties may appeal erroneous relevance determinations, if they affected the outcome, under the right to appeal on grounds of procedural irregularity. (p. 30343).
         3. For example, if an IHE dismisses a formal complaint because the IHE concludes that the misconduct alleged does not meet the definition of sexual harassment, a party might appeal the mandatory dismissal by asserting procedural irregularity on the basis that the alleged conduct in fact does meet the definition of sexual harassment, and thus mandatory dismissal was inappropriate. (p. 30294).
      2. new evidence that was not reasonably available at the time the determination was made that could affect the outcome of the matter; or
      3. Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against one of the parties that affected the outcome of the matter.
         § 106.45(b)(8).
   2. Schools may also offer opportunity for appeal equally to both parties on additional bases. § 106.45(b)(8).

3. Grievance Process Requirements

   1. A. An IHE’s grievance process must:
      1. include a description of the procedures and permissible bases for both parties to appeal. § 106.45(b)(1)(viii).
      2. include a reasonably prompt timeframe for filing and resolving appeals. § 106.45(b)(1)(v).
         1. Colorado statute requiring good faith effort to complete adjudication process within average of 60 to 90 days is exclusive of appeals. § 23-5-146(3)(d)(I), C.R.S.

4. Procedural Requirements

   1. For all appeals, an IHE must:
      1. notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
      2. ensure that the decision-maker for the appeal is not the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator;
      3. ensure that the decision-maker for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of section 106.45, i.e., the training requirements and prohibitions against conflicts of interest and bias;
      4. give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
      5. issue a written decision describing the result of the appeal and the rationale for the result; and 55
      6. provide the written decision simultaneously to both parties.
         § 106.45(b)(8).

5. Additional Considerations for Appeals.

   1. The rules leave to an IHE’s discretion whether the severity or proportionality of sanctions is an appropriate basis for appeal, but any such appeal offered by an IHE must be offered equally to both parties. (p. 30396).
   2. A written determination becomes “final” only after the time period to file an appeal has expired, or if a party does file an appeal, after the appeal decision has been sent to the parties. (p. 30393).
   3. Supportive measures to maintain the status quo may need to continue during pendency of appeal. (p. 30393).
   4. IHE must maintain any records of an appeal and its result for 7 years. § 106.45(b)(10).
   5. IHE must ensure that decision-makers for appeals receive training. § 106.45(b)(1)(iii).