Sanctions (Response 6/23/2020)
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 Title IX Rule, at § 106.45(b)(7), requires a recipient’s decision-maker(s) to issue a written determination that must include, among other items, the result as to each allegation and rationale for the result, any disciplinary sanctions imposed by the recipient against the respondent, and whether remedies will be provided by the recipient to the complainant.
The Rule does not preclude a recipient from using one decision-maker to reach the determination regarding responsibility, and having another decision-maker, who may be an employee or administrator of the recipient (e.g., a tenure committee) determine appropriate disciplinary sanctions (including making such a decision at a separate hearing), so long as the end result is that the decision-maker who reached the determination regarding responsibility includes the disciplinary sanctions imposed by the recipient against the respondent in the written determination issued under § 106.45(b)(7). The issuance of a written determination, cannot be a piecemeal process that is broken down into chronologically occurring sub-parts.
In other words, when a recipient uses a separate decision-maker to make disciplinary sanction decisions, the recipient must issue a single written determination containing all of the information required under § 106.45(b)(7). Recipients should also remain aware of their obligation to conclude the grievance process within the reasonably prompt time frames designated in the recipient’s grievance process, under § 106.45(b)(1)(v). Additionally, each decision-maker—whether an employee of the recipient or an employee of a third party such as a consortium of schools—owes an individual and ongoing duty not have a conflict of interest or bias for or against complainants or respondents generally, or with respect to an individual complainant or respondent, pursuant to § 106.45(b)(1)(iii).