Hearings

Live Hearing

1. IHEs must provide for a live hearing. § 106.45(b)(6)(i). The requirement for a live hearing cannot be waived by the IHE or by one or both parties. (p. 30360).
2. Live hearings may be conducted with all parties physically present in the same geographic location or, at the IHE’s discretion or the request of either party, 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. Id.
3. The live hearing must be recorded or transcribed: IHEs must create an audio or audio visual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. Id.

Written notice of the hearing

1. IHE must provide written notice of the date, time, location, participants, and purpose of all hearings. § 106.45(b)(5)(v).

No rights to subpoenas or pre-hearing depositions

1. No subpoenas or pre-hearing depositions allowed: [P]arties are not granted the right to depose parties or witnesses, nor to invoke a court system’s subpoena powers to compel parties or witnesses to appear at hearings, which are common features of procedural rules governing litigation and criminal proceedings. (p. 30306).

1. Parties have the right to an advisor of their choice, who may be, but does not have to be, an attorney. § 106.45(b)(3)(iv).
2. An advisor must be provided to conduct cross examination if a party does not have an advisor to attend the hearing: If a party does not have an advisor present at the live hearing, the IHE must provide without fee or charge to that party, an advisor of the IHE’s choice, who may be, but is not required to be, an attorney, to conduct cross examination on behalf of that party. (p. 30342).
3. Only an advisor can conduct cross examination: At the live hearing, each party’s advisor must be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. § 106.45(b)(6)(i).
4. Role of advisor: Other than allowing the advisor to conduct cross examination, an IHE 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. § 106.45(b)(5)(iv).
5. Advisors may conduct direct examination: For example, whether advisors also may conduct direct examination is left to an IHE’s discretion. (p.30342).
6. An attorney advisor is not required: An IHE may fulfill its obligation to provide an advisor for a party to conduct cross examination at a hearing without hiring an attorney to be that party’s advisor, and that remains true regardless of whether the other party has hired a lawyer as an advisor of choice. (p. 30341).

Decision-Makers

1. The decision-maker(s) . . . cannot be the same person(s) as the Title IX Coordinator or the investigator(s). § 106.45(b)(7).
2. Right and responsibility to ask questions: The decision-maker has the right and responsibility to ask questions and elicit information from parties and witnesses on their own initiative to aid the decision-maker in obtaining relevant evidence both inculpatory and exculpatory, and the parties also have equal rights to present evidence in front of the decision-maker so the decision-maker has the benefit of perceiving each party’s unique perspectives about the evidence. (p. 30331).
3. Must determine relevancy of each question asked: Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. §106.45(b)(6)(i).
4. Must objectively evaluate relevant evidence: The decision-maker is under an obligation to objectively evaluate all relevant evidence both inculpatory and exculpatory, and must therefore independently reach a 46
5. determination regarding responsibility without giving deference to the investigative report. (p. 30314).
6. Hearing Officer vs. Decision Maker: IHEs have discretion to decide whether to have a hearing officer (presumably to oversee or conduct a hearing) separate and apart from a decision-maker, and the final regulations do not prevent the same individual serving in both roles. (p. 30372).

Support Persons

1. Because of the confidentiality requirements under §106.71(a), unless required by law, a party cannot have a person other than their advisor attend the hearing. (p. 30499).
2. But, who may be “required by law” to attend with a party? If a party has a disability, IHEs must comply with disability laws that may require accommodations. Thus, a person assisting a party with a disability, or a language interpreter, may accompany a party to the hearing without violating § 106.71(a) because such a person’s presence at the hearing is required by law and/or necessary to conduct the hearing. (p. 30339).

Rules of Decorum

1. IHEs may adopt and apply codes of conduct and rules of decorum to ensure that parties and advisors, including assigned advisors, conduct cross-examination questioning in a respectful and non-abusive manner. The decision-maker remains obligated to ensure that only relevant questions are posed during cross-examination. (p. 30340).
2. If a party’s provided advisor, or advisor of choice, refuses to comply with an IHE’s rules of decorum (for example, by insisting on yelling at the other party), the IHE may provide that party with a different advisor to conduct cross-examination on behalf of that party. (p. 30342).

Standards of Evidence

1. Under §106.45(b)(1)(vii), an IHE may use either:
   1. Clear and Convincing: Not formally defined. Preamble refers to: having confidence that a conclusion is based on facts that are highly probable to be true. (p. 30386).
      or
   2. Preponderance of the Evidence: Not formally defined. Preamble refers to: concluding that a fact is more likely than not to be true. (p. 30373).
2. Although IHE can use either standard, the IHE must use same standard of evidence for all formal complaints of sexual harassment, and must use the same standard of evidence for formal complaints against both students and employees. § 106.45(b)(1)(vii).
   • Please note: IHEs may want to consider Colorado state law, which provides that IHEs must use a preponderance of the evidence standard when the student is a respondent. See § 23-5-146(3)(d)(II), C.R.S.
3. Corroborating evidence is not required: Neither the preponderance of the evidence standard, nor the clear and convincing evidence standard, requires corroborating evidence. (p. 30381, fn. 1441).

Equal Opportunity to Present Evidence, Including Expert Testimony

1. IHE must provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, (which may include investigators), and other inculpatory and exculpatory evidence as part of the investigation, even if the IHE believes that refusing to do so was not clearly unreasonable. (p. 30213).

IHE can also present evidence

1. Although IHE is not a party to the proceeding, this does not prevent the IHE from presenting evidence to the decision-maker, who must then objectively evaluate relevant evidence (both inculpatory and exculpatory) and reach a determination regarding responsibility (p. 30291). ** Please note that the IHE, not the complainant or respondent, has to meet the standard of evidence.

Cross-Examination

1. Cross examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. § 106.45(b)(6)(i).
2. Cross-examination cannot be done through written questions: the final regulations clarify that submission of written questions, even during a live hearing, is not compliant with § 106.45(b)(6)(i). (p. 30335).

Failure to Submit to Cross-examination

1. If a party or witness does not submit to cross examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that 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. § 106.45(b)(6)(i).
   1. Includes prior statements in emails, text chains, police reports, SANE reports, medical records, etc. (p. 30349).
   2. Applies even in the case of death or disability. (p. 30348).
2. Exceptions: Some exceptions to general rule regarding failure to submit to cross examination:
   1. Video evidence: Where a complainant refuses to answer cross-examination questions, but video evidence exists showing the underlying incident, a decision-maker may still consider the available evidence and make a determination. (p. 30328). This exception does not apply to statements made within the video. Id.
   2. Statements themselves = sexual harassment: A respondent’s alleged verbal conduct, that itself constitutes the sexual harassment at issue, is not the respondent’s “statement” as that word is used in § 106.45(b)(6)(i), because the verbal conduct does not constitute the making of a factual assertion to prove or disprove the allegations of sexual harassment; instead, the verbal conduct constitutes part or all of the underlying allegation of sexual harassment itself. For example, where a complainant alleges that the respondent said to the complainant: “If you go on a date with me, I’ll give you a higher grade in my class,” and at the postsecondary institution’s live hearing, the respondent does not submit to cross-examination, then § 106.45(b)(6)(i) does not preclude the decision-maker from relying on the complainant’s testimony that the respondent said those words to the complainant. See OCR Blog 20200522, available at https://www2.ed.gov/about/offices/list/ocr/blog/index.html.

Relevancy Determinations

1. Please see Section 8 on Relevance.

Other Evidentiary Issues

1. The regulations do not speak to admissibility of hearsay, prior bad acts, character evidence, polygraph (lie detector) results, standards for authentication of evidence, or similar issues concerning evidence, but the final regulations require IHEs to gather and evaluate relevant evidence. (p. 30247).
2. Relevance is the standard that the final regulations require, and any evidentiary rules that an IHE chooses must respect this standard of relevance. For example, an IHE may not adopt a rule excluding relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts, or constitute character evidence. (p. 30248).
3. IHE cannot require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. § 106.45(b)(1)(x).

Credibility Determinations

1. Admissible, relevant evidence must be evaluated for weight or credibility by an IHE’s decisionmaker. (p. 30294).
2. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the decision-maker, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. (p. 30313).
3. A party’s answers to cross-examination questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions. Because decision-makers must be trained to serve impartially without prejudging the facts at issue, the final regulations protect against a party being unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory. (p. 30323).

Determination of Responsibility

1. A decision-maker must issue written determination regarding responsibility. § 106.45(b)(7)(i).
2. Under §106.45(b)(7)(ii), the written determination must include:
   1. Identification of the allegations potentially constituting sexual harassment as defined in § 106.30.
   2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held.
   3. Findings of fact supporting the determination;
   4. Conclusions regarding the application of the IHE’s code of conduct to the facts;
   5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the IHE imposes on the respondent, and whether remedies designed to restore or preserve equal access to the IHE’s education program or activity will be provided by the IHE to the complainant; and
   6. The IHE’s procedures and permissible bases for the complainant and respondent to appeal.
   7. The written determination does not need to include: an evaluation of contradictory facts, exculpatory evidence, “all evidence” presented at a hearing, or how credibility assessments were reached. (p. 30389).