Navigating New Title IX Regulations: Policy Development & Cross-Examination
Title IX:
SURVIVING
THE NEW
TITLE
IX
REGULATIONS
HOW
TO
DEVELOP NEW
POLICIES
AND
NAVIGATE
THE
CROSS-EXAMINATION
REQUIREMENTS
Department of Education Releases
New Title IX Regulations
T
i
t
l
e
I
X
o
f
t
h
e
E
d
u
c
a
t
i
o
n
A
m
e
n
d
m
e
n
t
s
A
c
t
o
f
1
9
7
2
“No person
in the United States shall, on
the
basis of
sex,
be
excluded from participation in, be denied the benefits of, or
be
subjected to discrimination under any education program or
activity receiving Federal financial
assistance.”
New Challenges Posed by New
Regulations: Some Big Ones
1.
Live
Hearings
2.
Cross
Examination
3.
Role
of
Advisors
4.
Evidentiary
Standards
5.
Off-Campus
Jurisdiction
Definition of Sexual Harassment
N
e
w
R
e
g
u
l
a
t
o
r
y
D
e
f
i
n
i
t
i
o
n
Existing federal and
state
case law regarding sexual
harassment and quid pro quo sexual harassment
o
r
“
U
n
w
e
l
c
o
m
e
c
o
n
d
u
c
t
o
n
t
h
e
b
a
s
i
s
o
f
s
e
x
t
h
a
t
i
s
s
o
s
e
v
e
r
e
,
p
e
r
v
a
s
i
v
e
,
a
n
d
o
b
j
e
c
t
i
v
e
l
y
o
f
f
e
n
s
i
v
e
t
h
a
t
i
t
d
e
n
i
e
s
a
p
e
r
s
o
n
a
c
c
e
s
s
t
o
t
h
e
s
c
h
o
o
l
’
s
e
d
u
c
a
t
i
o
n
p
r
o
g
r
a
m
o
r
a
c
t
i
v
i
t
y
.
”
New Regulations
Evidentiary Standard
Mandated that institutions
use “preponderance of
the
evidence”
Lower standard than
“clear
and convincing evidence”
P
r
e
v
i
o
u
s
S
t
a
n
d
a
r
d
N
e
w
S
t
a
n
d
a
r
d
Institutions
may
choose
between the two
(PoE
or
C&C)
Schools must apply the
same standard of evidence
to
all
formal complaints of
sexual harassment, ie:
against employees
(including
faculty)
Off-Campus Jurisdiction
•
P
r
i
o
r
Included
off-campus
Included during study
abroad
•
N
e
w
I
n
c
l
u
d
e
s
o
f
f
-
c
a
m
p
u
s
i
f
w
i
t
h
i
n
a
s
c
h
o
o
l
’
s
“
e
d
u
c
a
t
i
o
n
p
r
o
g
r
a
m
o
r
a
c
t
i
v
i
t
y
”
Excludes study
abroad
Live Hearing Requirement
R
e
g
u
l
a
t
i
o
n
s
p
r
o
v
i
d
e
:
U
n
d
e
r
1
0
6
.
4
5
(
b
)
,
P
o
s
t
s
e
c
o
n
d
a
r
y
s
c
h
o
o
l
s
m
u
s
t
p
r
o
v
i
d
e
f
o
r
l
i
v
e
h
e
a
r
i
n
g
d
u
r
i
n
g
t
h
e
g
r
i
e
v
a
n
c
e
p
r
o
c
e
s
s
Most
challenging
feature of the
live
hearing
requirement is
the
cross-examination
requirement
Hearings for Elementary and Secondary Schools
•
Elementary and secondary schools are free to conduct grievance
proceedings without any type of hearing, including a live hearing.
•
They may choose to but are not required to provide live cross-
examination or the other hearing procedures outlined in the Title IX.
•
With or without a hearing, after the schools sends the investigation
report to the parties and before reaching a determination regarding
responsibility, the decision-makers 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.
Role of Advisors
A
d
v
i
s
o
r
R
e
q
u
i
r
e
m
e
n
t
All parties are entitled
to
an
advisor
of
their
choosing
School
must
provide an advisor
if party
wants an advisor
but does not have
one
Advisor can be anyone, including an
attorney
Cross-Examination
P
r
e
v
i
o
u
s
l
y
N
o
c
r
o
s
s
-
e
x
a
m
i
n
a
t
i
o
n
r
e
q
u
i
r
e
d
N
o
w
Parties
must
be provided advisors
who
can,
but
are not required
to
be,
attorneys
Must
allow
for
pause before
witness/party gives
answers
Can be done remotely
/
separate
rooms via
technology
Only
relevant questions
allowed
Parties can refuse
to
submit
to
cross-examination
What is Cross-Examination?
A
c
c
o
r
d
i
n
g
t
o
M
e
r
r
i
a
m
-
W
e
b
s
t
e
r
:
“
T
h
e
e
x
a
m
i
n
a
t
i
o
n
o
f
a
w
i
t
n
e
s
s
w
h
o
h
a
s
a
l
r
e
a
d
y
t
e
s
t
i
f
i
e
d
i
n
o
r
d
e
r
t
o
c
h
e
c
k
o
r
d
i
s
c
r
e
d
i
t
t
h
e
w
i
t
n
e
s
s
'
s
t
e
s
t
i
m
o
n
y
,
k
n
o
w
l
e
d
g
e
,
o
r
c
r
e
d
i
b
i
l
i
t
y
.
”
What is Cross-Examination?
A
c
c
o
r
d
i
n
g
t
o
J
o
h
n
W
i
g
m
o
r
e
:
“Cross
Examination is beyond any doubt
the
greatest legal
engine ever invented
for the
discovery
of
truth.”
Just Ask Any Witness Who is About to
be Cross Examined
Purpose for Cross-Examination
P
r
o
b
e
w
i
t
n
e
s
s
e
s
o
n
:
Credibility/trustworthiness
Memory and ability
to
remember
facts of
case
Background
Bias/conflicts
of
witness
Cross-Examination & Credibility
•
Determining
Credibility
Conflicts,
D
i
screpanc
i
es/
Inconsistencies
Motive/Bias
Inherent
plausibility
Internally consistency
Opportunity
to Observe
Demeanor
–
Some
limitations
–
Cross
New Regulations on Cross-Examination
L
i
v
e
H
e
a
r
i
n
g
Advisors must be allowed to cross-examine other
parties and witnesses in
live
hearing
–
“Such
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…”
No party can ever be allowed to personally
question
or cross-examine anyone, only through
advisors
If any party requests, entire hearing must be held
with parties located in separate rooms, using
technology
to see/hear
all
Title IX Guidance on Implementing
Cross Examination
What
specific guidance do
the
new
regulations give
for
implementing
the
new
cross
examination procedures?
New Regulations on Cross-Examination
A
d
v
i
s
o
r
s
School cannot limit
party’s
choice of
advisor
No advisor? No
problem!
–
If a party does
not
have an advisor at the live
hearing, recipient must provide advisor to
perform
cross
–
May be, but is not required to be, an
attorney
In-House Advisors
Pros and cons
P
r
o
s
:
L
o
w
e
r
c
o
s
t
s
,
p
e
o
p
l
e
f
a
m
i
l
i
a
r
w
i
t
h
c
a
m
p
u
s
e
n
v
i
r
o
n
m
e
n
t
C
o
n
s
:
P
o
t
e
n
t
i
a
l
c
o
n
f
l
i
c
t
s
&
m
a
y
h
a
v
e
t
o
g
o
u
p
a
g
a
i
n
s
t
l
a
w
y
e
r
s
Lawyers as Advisors
Pros and Cons
P
r
o
s
:
E
x
p
e
r
i
e
n
c
e
a
n
d
s
k
i
l
l
a
t
c
r
o
s
s
-
e
x
a
m
i
n
a
t
i
o
n
C
o
n
s
:
M
a
n
a
g
e
m
e
n
t
,
n
o
j
u
d
g
e
,
n
o
r
u
l
e
s
o
f
e
v
i
d
e
n
c
e
Managing Cross-Examination
L
i
m
i
t
a
t
i
o
n
s
o
n
C
r
o
s
s
-
E
x
a
m
i
n
a
t
i
o
n
Relevance is only evidentiary exclusion imposed
by the
regulations
Questioning
must
be
respectful (per
student
codes)
How To Determine Relevance
Rule 401
of the
Federal Rules
of
Evidence
T
e
s
t
f
o
r
R
e
l
e
v
a
n
t
E
v
i
d
e
n
c
e
:
–
Evidence is relevant
if:
a)
It has any tendency to make a fact more or
less
probable than
it
would be without the
evidence; and
b)
The fact is of consequence
in
determining
the
action.
When Must Relevance be Determined?
R
e
a
l
-
t
i
m
e
The
decision maker
must
exclude irrelevant
questions
Makes relevance determination on the
spot
before party/witness
answers
R
e
g
u
l
a
t
i
o
n
l
a
n
g
u
a
g
e
:
“
B
e
f
o
r
e
a
c
o
m
p
l
a
i
n
a
n
t
,
r
e
s
p
o
n
d
e
n
t
,
o
r
w
i
t
n
e
s
s
a
n
s
w
e
r
s
a
c
r
o
s
s
-
e
x
a
m
i
n
a
t
i
o
n
o
r
o
t
h
e
r
q
u
e
s
t
i
o
n
,
t
h
e
d
e
c
i
s
i
o
n
-
m
a
k
e
r
(
s
)
m
u
s
t
f
i
r
s
t
d
e
t
e
r
m
i
n
e
w
h
e
t
h
e
r
t
h
e
q
u
e
s
t
i
o
n
i
s
r
e
l
e
v
a
n
t
a
n
d
e
x
p
l
a
i
n
a
n
y
d
e
c
i
s
i
o
n
t
o
e
x
c
l
u
d
e
a
q
u
e
s
t
i
o
n
a
s
n
o
t
r
e
l
e
v
a
n
t
.
”
The Pause
W
h
a
t
i
s
“
t
h
e
p
a
u
s
e
”
?
Break in
the
flow of the hearing, during which
decision
maker determines relevance of
question
Happens
after
every
question
New Regulations on Cross-Examination
R
e
l
e
v
a
n
c
e
Relevance explanation does not have to be
lengthy
Provides a pause
in
process; pace does not place
undue pressure for immediate
answer
Appeal of erroneous relevance
determinations
permitted
D
O
E
d
e
c
l
i
n
e
d
t
o
r
e
v
i
s
e
r
e
g
u
l
a
t
i
o
n
s
t
o
r
e
q
u
i
r
e
submission of questions prior to
hearing
Limitations on Cross-Examination
P
r
i
o
r
S
e
x
u
a
l
H
i
s
t
o
r
y
Prior sexual history is only allowed in
two
narrow
circumstances:
1.
Someone other than the Respondent
committed
the sexual
harassment
2.
The sexual behavior between the
Complainant and the Respondent is
offered
to prove
consent
Tips on How to Manage Cross-
Examination
Encourage/require advisors to submit questions with
the format
of
a “tree”
of all
possible
questions
–
If yes, then I will ask this
follow-up
question
–
If no, then I will ask
this
Encourage/require advisors to submit the kinds
of
evidence
that
they would
use to test
credibility
on
cross
Tips on How to Manage Cross-
Examination
DOE
recognizes schools can
set forth
rules
of
decorum
to
ensure respectful
questioning
–
School can require party to
use
a different
advisor if advisor refuses to adhere to
rules,
i.e.
, even if question
is
relevant but
manner of asking is abusive, school can
enforce
rules
Adjudication & Hearing
Management Training
W
h
o
N
e
e
d
s
t
o
b
e
T
r
a
i
n
e
d
Advisors
–
School-provided
advisors
–
Flexibility to provide trauma-informed
training
Panels
Decision
Makers
–
Relevancy,
weighing
evidence
Title
IX
Office
Solution Models
Develop 100% in-house advisors and panel/decision makers
Outsource
advisors
Outsource hearing/decision-maker
roles
Outsource
hearing management
services
100% In-House
Training
for
staff,
faculty,
and
students
Develop pool
of
potential advisors and panel
members
Outsource Advisors
Develop pool
of
available
attorneys
Retain law
firm to
serve as
advisors
Caution: Beware
of
conflicts
of
interest
Outsource Hearing
A
L
a
C
a
r
t
e
A
p
p
r
o
a
c
h
:
R
e
t
i
r
e
d
j
u
d
g
e
,
p
r
o
f
e
s
s
i
o
n
a
l
m
e
d
i
a
t
o
r
Law
firm
with arbitration
experience
Hearing Management Services
Develop hybrids
of
above models tailored
to
institutional needs and
resources
Vet
and develop local networks
of
decision
makers
and
advisors
Provide advisor services
for
hearings
Supplement in-house general counsel or function
as limited outside general
counsel
Title IX:
SURVIVING
THE NEW
TITLE
IX
REGULATIONS
Contact Info:
Alan Nahs
Civil Rights Coordinator
alan.nahs@Careertech.ok.gov
Office: 405-743-5578
Cell: 405-880-9457
Learn how to develop policies and address challenges posed by the new Title IX regulations, including live hearings, cross-examination, evidentiary standards, and off-campus jurisdiction. Understand the new regulatory definitions and the importance of complying with the evidentiary and jurisdiction standards set forth by the Department of Education.
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Presentation Transcript
Title IX: SURVIVING THE NEW TITLE IX REGULATIONS HOW TO DEVELOP NEW POLICIES AND NAVIGATE THE CROSS-EXAMINATION REQUIREMENTS
Department of Education Releases New Title IX Regulations Title IX of the Education Amendments Act of 1972 No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
New Challenges Posed by New Regulations: Some Big Ones 1. Live Hearings 2. Cross Examination 3. Role ofAdvisors 4. Evidentiary Standards 5. Off-Campus Jurisdiction
Definition of Sexual Harassment New Regulatory Definition Existing federal and state case law regarding sexual harassment and quid pro quo sexual harassment or Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school s education program or activity.
New Regulations Evidentiary Standard Previous Standard New Standard Institutions may choose between the two (PoE or C&C) Schools must apply the same standard of evidence to all formal complaints of sexual harassment, ie: against employees (including faculty) Mandated that institutions use preponderance of the evidence Lower standard than clear and convincing evidence
Off-Campus Jurisdiction New Prior Includes off-campus if within a school s education program or activity Included off-campus Included during study abroad Excludes study abroad
Live Hearing Requirement Regulations provide: Under 106.45(b), Postsecondary schools must provide for live hearing during the grievance process Most challenging feature of the live hearing requirement is the cross-examination requirement
Hearings for Elementary and Secondary Schools Elementary and secondary schools are free to conduct grievance proceedings without any type of hearing, including a live hearing. They may choose to but are not required to provide live cross- examination or the other hearing procedures outlined in the Title IX. With or without a hearing, after the schools sends the investigation report to the parties and before reaching a determination regarding responsibility, the decision-makers 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.
Role of Advisors Advisor Requirement All parties are entitled to an advisor of their choosing School must provide an advisor if party wants an advisor but does not have one Advisor can be anyone, including an attorney
Cross-Examination Now Parties must be provided advisors who can, but are not required to be, attorneys Must allow for pause before witness/party gives answers Can be done remotely / separate rooms via technology Only relevant questions allowed Parties can refuse to submit to cross-examination Previously No cross-examination required
What is Cross-Examination? According to Merriam-Webster: The examination of a witness who has already testified in order to check or discredit the witness's testimony, knowledge, or credibility.
What is Cross-Examination? According to John Wigmore: Cross Examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.
Just Ask Any Witness Who is About to be Cross Examined
Purpose for Cross-Examination Probe witnesses on: Credibility/trustworthiness Memory and ability to remember facts of case Background Bias/conflicts of witness
Cross-Examination & Credibility Determining Credibility Conflicts, Discrepancies/ Inconsistencies Opportunity to Observe Demeanor Some limitations Motive/Bias Cross Inherent plausibility Internally consistency
New Regulations on Cross-Examination Live Hearing Advisors must be allowed to cross-examine other parties and witnesses in live hearing Such 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 No party can ever be allowed to personally question or cross-examine anyone, only through advisors If any party requests, entire hearing must be held with parties located in separate rooms, using technology to see/hear all
Title IX Guidance on Implementing Cross Examination What specific guidance do the new regulations give for implementing the new cross examination procedures?
New Regulations on Cross-Examination Advisors School cannot limit party s choice of advisor No advisor? No problem! If a party does not have an advisor at the live hearing, recipient must provide advisor to perform cross May be, but is not required to be, an attorney
In-House Advisors Pros and cons Pros: Lower costs, people familiar with campus environment Cons: Potential conflicts & may have to go up against lawyers
Lawyers as Advisors Pros and Cons Pros: Experience and skill at cross-examination Cons: Management, no judge, no rules of evidence
Managing Cross-Examination Limitations on Cross-Examination Relevance is only evidentiary exclusion imposed by the regulations Questioning must be respectful (per student codes)
How To Determine Relevance Rule 401 of the Federal Rules of Evidence Test for Relevant Evidence: Evidence is relevant if: a) It has any tendency to make a fact more or less probable than it would be without the evidence; and b) The fact is of consequence in determining the action.
When Must Relevance be Determined? Real-time The decision maker must exclude irrelevant questions Makes relevance determination on the spot before party/witness answers Regulation language: 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.
The Pause What is the pause ? Break in the flow of the hearing, during which decision maker determines relevance of question Happens after every question
New Regulations on Cross-Examination Relevance Relevance explanation does not have to be lengthy Provides a pause in process; pace does not place undue pressure for immediate answer Appeal of erroneous relevance determinations permitted DOE declined to revise regulations to require submission of questions prior to hearing
Limitations on Cross-Examination Prior Sexual History Prior sexual history is only allowed in two narrow circumstances: 1. Someone other than the Respondent committed the sexual harassment 2. The sexual behavior between the Complainant and the Respondent is offered to prove consent
Tips on How to Manage Cross- Examination Encourage/require advisors to submit questions with the format of a tree of all possible questions If yes, then I will ask this follow-up question If no, then I will ask this Encourage/require advisors to submit the kinds of evidence that they would use to test credibility on cross
Tips on How to Manage Cross- Examination DOE recognizes schools can set forth rules of decorum to ensure respectful questioning School can require party to use a different advisor if advisor refuses to adhere to rules, i.e., even if question is relevant but manner of asking is abusive, school can enforce rules
Adjudication & Hearing Management Training Who Needs to be Trained Advisors School-provided advisors Flexibility to provide trauma-informed training Panels Decision Makers Relevancy, weighing evidence Title IX Office
Solution Models Develop 100% in-house advisors and panel/decision makers Outsource advisors Outsource hearing/decision-maker roles Outsource hearing management services
100% In-House Training for staff, faculty, and students Develop pool of potential advisors and panel members
Outsource Advisors Develop pool of available attorneys Retain law firm to serve as advisors Caution: Beware of conflicts of interest
Outsource Hearing A La Carte Approach: Retired judge, professional mediator Law firm with arbitration experience
Hearing Management Services Develop hybrids of above models tailored to institutional needs and resources Vet and develop local networks of decision makers and advisors Provide advisor services for hearings Supplement in-house general counsel or function as limited outside general counsel
Title IX: SURVIVING THE NEW TITLE IX REGULATIONS Contact Info: Alan Nahs Civil Rights Coordinator alan.nahs@Careertech.ok.gov Office: 405-743-5578 Cell: 405-880-9457
