Title IX Notice of Proposed Rulemaking – Do We Need to have a Hearing?
By Randy Geller
The Notice of Proposed Rulemaking (NPRM) issued by the U.S. Department of Education on November 16, 2018, addresses the requirement of a hearing head on – more or less. Not surprisingly, the answers differ for higher education and K-12. For higher education, the cumulative effect of the rules may push more students and institutions toward “informal resolution” of complaints. It’s difficult to discern the effect on K-12, and the Department has asked for comment on whether parts of the proposed rules should even apply at the elementary and secondary levels.
The NPRM in proposed section 106.45 describes in excruciating detail the grievance process that educational institutions must use for formal complaints of sexual harassment. The proposed rule allows but does not require elementary and secondary schools to have a “live hearing.” In the absence of a hearing, however, a decision-maker must give each party the opportunity to submit written questions, provide each party with the answers, and allow for limited follow-up. If a live hearing is held, the decision-maker must ask each party and any witnesses any relevant questions and follow-up questions that a party wants asked. Interestingly, these two models are often used by colleges and universities in student conduct proceedings.
In contrast to K-12, colleges and universities must provide for a live hearing under the proposed rules, unless the parties agree to an “informal resolution.” At any hearing, the decision-maker must permit each party’s “advisor of choice,” but not the party himself, to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. This is cross-examination. If a party does not have an advisor present at the hearing, the institution must provide one. At the request of either party, the institution must provide for cross-examination to occur with the parties located in separate rooms but connected by video conferencing. If a party or witness does not submit to cross-examination, the decision-maker must disregard any statement of that party or witness in reaching a responsibility determination.
Any educational institution, K-12 or higher education, may facilitate “informal resolution” of any complaint at any time before determining responsibility. Any process is permissible, including mediation, as long as it does not involve a full investigation and adjudication and provided that the school (1) provides to the parties a written notice disclosing (a) the allegations; (b) the requirements of the informal resolution process; and (c) any consequences resulting from participating in the informal resolution process; and (2) obtains the voluntary, written consent of the parties. The prediction here is that the cumulative effect of the proposed rules would impel schools toward the use of informal resolution.
Since 1995, I have helped clients address a wide variety of challenging issues at the intersection of education, institutional management, public policy, and the law. With years of experience at two major universities and in private practice, I offer not only legal advice, but also practical advice to help clients manage problems and implement effective solutions. I would enjoy assisting your institution in managing its response to the newly proposed regulations and implementing those regulations when they become final.
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