Bias and Conflicts of Interest

Regulations require no bias or conflicts of interest:

1. § 106.45(a) provides: An IHE’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX.
2. § 106.45(b)(1)(iii) provides: any individual designated by an IHE as a Title IX Coordinator, investigator, decisionmaker, or any person designated by an IHE to facilitate an informal resolution process, cannot have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
3. §106.45(b)(1)(iii) further provides: that all Title IX Coordinators investigators, decision-makers, and any person who facilitates an informal resolution process, must receive training on how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. In conducting Title IX proceedings, all such persons must not rely on sex stereotypes—typical notions of what men or women do or do not do—and must promote impartial investigations and adjudications of formal complaints of sexual harassment.

Definitions. Regulations do not define conflicts of interest or bias.
Definitions from Merriam Webster include:

1. Conflict of Interest
   1. a conflict between the private interests and the official or professional responsibilities of a person in a position of trust
      or
   2. a conflict between competing duties. See https://www.merriam-webster.com/dictionary/conflict%20of%20interest.
2. Bias
   1. an inclination of temperament or outlook; especially, a personal and sometimes unreasoned judgment. See https://www.merriam-webster.com/dictionary/bias.
3. Partial
   1. inclined to favor one party more than the other. See https://www.merriam-webster.com/dictionary/partial.

Presence of bias is fact determinative, and should not necessarily be based on stereotypes, prior affiliations, or outcomes:

1. Based on a reasonable person standard: Whether bias exists requires examination of the particular facts of a situation and the Department encourages IHEs to apply an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, exercising caution not to apply generalizations that might unreasonably conclude that bias exists. (p. 30252).
2. Cautions against using sex-stereotypes as evidence bias: The Department cautions against applying sex-stereotypes that might unreasonably conclude that bias exists, for example assuming that all self-professed feminists, or self-described survivors, are biased against men, or that a male is incapable of being sensitive to women, or that a male is always the perpetrator, or a woman is always the victim. (p. 30252).
3. Cautions against using prior affiliations as evidence of bias: IHEs should also guard against disqualifications based solely on prior professional affiliations, such as a belief that prior work as a victim advocate, or as a defense attorney, renders the person biased for or against complainants or respondents. The training required by § 106.45(b)(1)(iii) is intended to provide Title IX personnel with the tools needed to serve impartially and without bias such that the prior professional experience of a person whom an IHE would like to have in a Title IX role need not disqualify the person from obtaining the requisite training to serve impartially in a Title IX role. (p. 30252).
4. Cautions against evaluating bias based on outcomes: The Department cautions parties and IHEs from concluding bias, or possible bias, based solely on the outcomes of grievance processes decided under the final regulations; for example, the mere fact that a certain number of outcomes result in determinations of responsibility, or non-responsibility, does not necessarily indicate or imply bias on the part of Title IX personnel. (p. 30252).

To avoid implications of bias and conflicts of interest:

1. Treat complainants and respondents equitably under the regulations. The regulations require IHEs to offer complainants supportive measures with or without a formal complaint. (p. 30218-9). The regulations also require IHEs to provide a presumption of non-responsibility to a respondent until a decision is rendered in the grievance process. §106.45(b)(1)(iv).
2. Avoid sex stereotypes in an IHE’s training materials, as well as its Title IX policies and procedures. (p. 30254).
3. Treat each person as individual, not as a member of a class. The obligation under Title IX is to treat each person as an individual, not as a member of a class subject to prejudgment and prejudice on the basis of sex. Prohibited bias may also be based on race, color, or national origin.
4. Objectively examine relevant evidence before reaching determination: Title IX personnel should objectively examine relevant evidence, and avoid prejudgment of facts, before reaching a determination on responsibility. (pp. 30214, 30252).
5. Give both parties equal opportunity to present witnesses and evidence. (p. 30222).
6. Continue to evaluate issues of bias and conflicts of interest throughout the grievance process: For instance, if an individual’s involvement with the emergency removal process results in bias or conflict of interest for or against the complainant or respondent, § 106.45(b)(1)(iii), such bias would preclude such personnel from serving in a role during a grievance process. (p. 30235).
7. Example of potential conduct exhibiting bias: If a Title IX Coordinator restricts a party from providing evidence, then the Title IX Coordinator would be violating these final regulations and may even have a conflict of interest or bias, as described in § 106.45(b)(1)(iii). (p. 30432).

1. IHE’s training materials were one-sided;
2. IHE failed to conduct an adequate investigation and objectively pursue the evidence;
3. IHE failed to reveal information learned during the investigation to both parties;
4. IHE investigator advocated for certain discipline;
5. IHE personnel made statements demonstrating favor towards complainants or respondents;
6. IHE failed to follow its own policies;
7. IHE failed to follow established procedures for Title IX investigations and hearings;
8. Decision-maker was influenced by other school officials in reaching a decision;
9. Decision-maker had professional connections with one of the party’s parents.