Inferences (Response 5/27/2020)

Inferences
Question:

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)?

Answer:

The provisions of § 106.45(b)(6)(i) apply only to recipients that are postsecondary institutions. Decision-makers at the elementary and secondary level are not bound by the hearing requirements set forth for postsecondary institutions, and therefore have additional flexibility when adjudicating formal complaints of sexual harassment.

At pages 1240-41 of the preamble to the Rule, the Department states:

If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision [§ 106.45(b)(6)(ii)] leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment. The Department notes that § 106.45(b) requires any rules adopted by a recipient for use in a Title IX grievance process, other than those required under § 106.45, must apply equally to both parties. Within that restriction, elementary and secondary school recipients retain discretion to decide how to conduct hearings if a recipient selects that option.