ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

1. Is it OCR’s expectation that a recipient will cause an investigation report to be transmitted to the decision-maker, and if so, at what point in the process?
2. The provision on prior sexual history and predisposition seems to apply to the hearing; should it also be applied by investigators to the report, or is that implied by the provision that requires the report to contain only relevant information?
3. It is unclear what kind of evidence OCR might believe was directly related to a complaint, but not relevant to the investigators, such that it would not be relied upon (but separately provided to the parties)(why would a recipient not rely on directly related evidence?). If we understand correctly, the parties would be able to make the case at the hearing that this information be considered by the decision-maker, though it was not included in the investigation report. Is that correct, and if so, what if the parties want to make the case that there is evidence not included in the investigation report or the “does not intend to rely on” pile that should be considered by the decision-maker (thus it was determined to be not relevant and/or directly related by investigators). May a party make that case, and if so, how would they know about the evidence to argue for its inclusion if they were not the source of it?
4. If the investigator does not testify as a witness, would there be portions of the investigation report that could be disregarded because the investigator was not subject to cross-examination?

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The regulations make the release of a perpetrator’s identity confidential unless FERPA exceptions apply. Based on the crimes of violence exception, that means that sexual assault, domestic violence, dating violence and stalking outcomes can be released if there is a finding of violation, but there is no exception for sexual harassment. Does that mean that recipients cannot release a finding of sexual harassment through a reference check, because it would be retaliatory to release this confidential information? Assume no state law requires such release.

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We understand that the decision-maker need to make the finding/determination, but we’re wondering if they can be influenced by the investigators, and if so, how much?

1. Can the investigation report make findings that an incident occurred as described by the complainant, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
2. Can the investigation report make a determination that an incident occurred as described by the complainant and that it violates policy, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
3. (If not) Can the investigation report make non-binding recommendations about the finding and/or determination, as defined above?
4. Can the investigator testify about their finding/determination opinions at the hearing? Can they volunteer, or only share if asked?
5. Can the investigator and decision-maker have off-line conversations about the investigator’s finding/determination opinions outside the hearing, as long as the decision-maker is not bound to follow them?

Where is the line between the investigation function and the decision-making function is really what we are seeking to understand.

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Many in the field are interpreting the regs to mean that the decision-maker in the hearing needs to render findings and sanctions. Many recipients have processes divided between finding hearings and sanction hearings, and are wondering if such bifurcation is possible under the the new regs, especially if the sanction hearing decision-maker is not at the findings hearing for purposes of being able to assess credibility. More pointedly, recipients are wondering if faculty discipline processes, in which sanctions are reviewed by many layers of committees, and which can lead to tenure revocation proceedings, all still allowed to be separate and outside of 106.45, or whether recipients somehow need to be figuring out how to combine findings and sanctions into one hearing process under 106.45.

The recently released Blog Post on Training Materials provided the following, extremely helpful clarification:

• “If a school’s current training materials are copyrighted or otherwise protected as proprietary business information (for example, by an outside consultant), the school still must comply with the Title IX Rule. This may mean that the school has to secure permission from the copyright holder to publish the training materials on the school’s website.
  • Nothing in the Title IX Rule abrogates intellectual property rights. If a school is unable to secure permission from a third party to post copyrighted training materials, then the school must create or obtain training materials  that can lawfully be  posted on the school’s website.”

However, I wanted to ensure that I am advising my staff moving forward and have two brief clarifying questions:

• After 8/14/20, in order to use a third-party training entity, must the Recipient secure permission to post the materials publicly in order to use that training?
• If a third party is unwilling to grant permission to have their materials displayed publicly, may those materials be used as supplemental materials to the training materials created or obtained that are lawfully posted that sufficiently cover the topics in required in Section 106?

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If ATIXA provides a link to our library that our clients/members can make accessible to the public, can we implement a registration system to access the link, meaning having members of the public sign up with their contact information in order to gain access?

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The regs state: 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. 

This appears in a section related to IHEs. Should K12s follow a similar approach with respect to a student who refuses to pose or answer questions (assume no live hearing)?

I understand that the regs say that the decision-maker shall not rely on statements from a party or witness who does not participate in the hearing. Does this refer to the original source of the statement or evidence, or the source at the hearing? Put more precisely, if Rob the respondent tells Walter the witness that he raped Veronica, can Walter testify to what Rob told him if Rob does not participate in hearing, but Walter does? And, another variation: if Rob the respondent tells Ivan the investigator that he raped Veronica, can Ivan testify to what Rob told him if Rob does not participate in hearing, but Ivan does (as a witness)?

In the Title IX final rule, Section 106.6(g) clarifies that parents/guardians are permitted to exercise their legal right to act on behalf of their child as “complainant,” “respondent,” etc., including stepping in to file a formal complaint under part 106.

What’s unclear, however, is whether this parent/guardian entitlement now triggers an obligation by the LEA/school to notify a parent/guardian that the school has notice of a report of sexual harassment when the school does not yet know whether the parent/guardian also has notice of the allegation. As we understand it, practices among LEA/schools differ (depending upon state law, LEA policy, and/or local custom/practice) as to whether they are required to make notification to a parent/guardian of an allegation of harassment. 

Does this “right” imply an obligation to notify the parents/guardians of the report alleging that their child is the victim of some form of sexual harassment?

Please clarify the regs language that parents can file as complainant on behalf of their child? Are they an actual complainant, or a proxy for their child? Does that only apply to minor children? Does it only apply to K-12? If it applies to an IHE, what if the child does not want to participate? Does the parent complainant gain all rights that an actual victim would have?