hi my name is Aaron Lacey I'm the chair
of the higher education practice
Thompson Coburn LLP and you are
listening to title nine hearings which
is one of the sessions that's part of
the Thompson Coburn title nine training
series
Thompson Coburn if you don't know we're
a law firm located are headquartered in
the Midwest with offices around the
country and we have a higher education
practice which means we have a group of
attorneys who spend either most of or
all of their time working with colleges
and universities on a wide range of
matters including matters like title
nine or title nine compliance I should
say the purpose of this training series
is to assist institutions of higher
education with complying with the new
title nine rule that becomes effective
August 14 2020 if you listen to the
first session we talked a lot more about
that rule and sort of how it came about
but one of the key features of the new
rule is that you are if you're an
institution of higher ed required to put
into place a robust and complex and for
many we expect sort of a challenging new
process for managing formal complaints
of title nine sexual harassment and that
process is going to involve a lot of
people advisors investigators
adjudicators appeal officers among them
and the new rule says you have to train
those folks and any training materials
you use you have to make available on
your external website so we've developed
this series very much as foundational
training for those individuals it is our
intent that institutions of higher
education should feel free should feel
free to use the training at their
discretion and also to be very clear to
put it on your external websites if you
want to that's why we've done it right
we'll just also add if you want any sort
of supplemental training or custom
training on your policies or other
matters we are of course happy to do
that as well I mentioned earlier so this
is one of several sessions more
specifically there are six that comprise
the training series and again you are
listening to hearings which we think is
going to be one of the better attended
of these sessions because the hearings
process is right at the core of this new
rule and it does involve some of the
most complex and difficult concepts this
is the syllabus for today's session so
I'm gonna start out just briefly talking
about the formal complaint framework as
I've said in other sessions I like to
try to sort of level set and help people
get
they're mine right as they say so you're
ready for the rest of the information
and had the context for it when the rest
of the session does start and you start
marching through key concepts and these
other matters there will be these two
gentlemen who do it so we have two
presenters for you today the first is a
retired judge hooker Shaw who was a
trial judge here in the state of
Missouri where I am located for many
many years and actually then
subsequently sat on the Missouri Court
Appeals so judge Shaw is quite literally
a professional adjudicator and he has a
lot of great experience and I know we'll
have a lot to add to the conversation
today in addition you've got back Scott
Goldschmidt as Scott has been a part of
all of those sessions here he's a big
part of our higher education practice
the former deputy general counsel at
Catholic University in Washington DC
Scott has worked on a wide range of
matters for institutions including
matters involving title 9 ok so the
formal complaint framework just real
quickly again to get you sort of set up
before Scott starts to go into key
concepts keep in mind and you've seen
this graphic in every presentation the
title 9 statute prohibits discrimination
on the basis of sex and all programs and
activities at institutions of higher
education so that could be
discrimination on the basis of sex in
any any form it could be discrimination
and employment or recruiting or
athletics and if an institution gets a
complaint along any of those lines then
they have to have a process in place for
addressing and resolving that complaint
the new rule is focused more
specifically on allegations or
complaints of sexual harassment on
campus and includes a new definition
that we're calling title 9 sexual
harassment and again in the first
session of the series Scott and I talked
about that definition of sexual
harassment and how it relates to the new
rule and the framework but here I just
want you to keep in mind the new rule is
really focused on sexual harassment not
all forms of sex discrimination and more
specifically it is focused on what an
institution has to do if it gets a
formal complaint of title 9 sexual
harassment and that is really where the
machinery that is set out in the new
rule for managing investigations and
hearings and appeals etc all comes into
play it's when you have a formal
complaint of title 9 sexual harassment
there is a definition a formal complaint
in the new law you see it here the key
components are that it has to be in
writing from a title 9 coordinator or a
complainant more commonly you would
expect probably from the complainant and
it needs to allege sexual discrimination
and requests that the institution act
and in particular carry out and
investigation if you get a formal
complaint that's when you have to start
your new process and you can see here
this slide lays out all the different
elements of the formal complaint process
that are required under the new law and
it's it's a lot it's a lot to wrap the
brain around and in fact most of our
training series is really focused on
walking through these various elements
you'll see there's only one highlighted
for today again it's hearings but
there's a lot to talk about in the
context of hearings so with all of that
having been said I will now turn it over
to mr. goldsmith Scott how are you today
I'm doing very well there and thank you
and it's sure a pleasure to be here and
to hopefully help you walk through
hearings which is Erin mentioned is a
really important and complex arrangement
of the new title and I rule so the first
thing I want to do is ground a few key
concepts so I'll introduce these
concepts here and then throw it over to
judge shot to really kind of explain
what they mean and based on his
experience how they can be a minister so
the first one is treating complainants
and respondents this is this is a
concept that permeates the entire rule
and all of our training modules and just
important to to remind everyone here one
of the department's main focuses is is
that complainants and respondents each
be treated the same and fairly that that
was a big impetus for the new rule and
that should really ground most actions
were taken by institutions Mexica
concept is objectively evaluating all
relevant and we'll get judge Shaw's
interpretation or his analysis of
relevant evidence in a second and that
includes both inculpatory and
exculpatory evidence and it also and
also institutions need to provide that
credibility determinations can't be made
on a person status as you can
responded or witnessed so just because a
person is making a complaint doesn't
mean they're any more or less believable
same with respondent and last we'll talk
about the presumption that the
respondent is not responsible for
alleged conduct until the determination
is made at the end and that's something
that needs to be explained upfront in
your processes and policies and in
notices that you provide sirs so good
Shaw welcome and thank you for for being
with us first question just a really
foundational concept that I think is
going to take us through the entire
presentation and we'll have a section
specifically on really intricate
relevant questions later but what is
relevance and we're going to talk about
what relevant evidence what do we mean
by that okay yes thank you Scott so when
we talk about relevance what we're
really talking about is whether or not
this evidence is probative of a material
fact does the evidence have a tendency
to make the existence of a consequential
or material fact more or less problem
and that would be relevant evidence the
project can sometimes the care of those
Scott when but we'll talk more about
relevance as we proceed but there can
sometimes be some disagreements or
discussion about what is relevant and
what is not relevant
and so the decision-maker will have to
determine whether or not he or she wants
to hear arguments or discussion about it
but I think as we go along we'll see how
this is going to be an important concept
in the conduct of the year absolutely I
definitely agree so now that we kind of
talked about what is relevance and
what's relevant evidence what the key
concept here was that decision-makers
need to objectively evaluate for all the
evidence that sounds simple but I assume
it might not be what does it mean to
objectively evaluate relevant evidence
and you hit the nail on the head this
guy it sounds very simple but I can tell
you having heard countless strong
and even on appeal but to keep an open
mind until all of the evidence had been
submitted until you heard all sides of
the event can sometimes be difficult and
it is difficult for all of us I would
say that you know jury research kind of
delves into how people process
information and I think it's kind of
hardwired into human beings to be
effective it is a ffcc tive decision
makers it is we typically make our
decisions particularly when there's a
conflict we make we have a tendency to
make our decisions relatively quickly
based upon our past experiences impulse
and emotion and you can't do that you
have to be a cognitive decision-maker
that is you have to wait until you've
heard everything and there's always a
tendency particularly if the party who
goes first to complain it for instance
goes first and you hear everything that
person has to say and all of the
evidence they have presented there then
you know in Indy you know a tendency to
make up your mind fairly quickly about
what the outcome should be and I've had
it happen to me many many times where
I've heard one side and I thought oh
well I've got this one done I know what
happens here and sure enough you hear
the other side and you go oh my goodness
no so you have to just remind yourself
that there are always at least two sides
to a story that you have to be very
patient with yourself and with the
parties and it will get back to this
also as we proceed you know it's not
just being objective and keeping an open
mind but you want to be patient with the
party so they can see that you're
keeping an open mind part of this whole
process is for people to feel that they
have been heard and listened to and that
they've had if they are hearing and so
open mind and this is something that I
think one can communicate to the parties
by being patient with them and
listening to hear everything before you
make a decision in case yeah no that is
sure great points and great advice I'll
just add one piece here that's specific
to the title 9 rule the the regulations
explained that when decision-makers
received a report from an investigator
there they're not supposed to show any
any deference to any decisions or
conclusions and not that they should be
made that an investigator poses that the
record is just to aid decision-makers
but all evidence as judge Shaw said
needs to be reviewed and objectively
evaluated based on their experience
there and let me get to the second
question on the slide the regulations
explain that decision-makers need to
objectively evaluate relevant evidence
including inculpatory and exculpatory
evidence
so these are the legal terms of art
could you explain what those two terms
mean yeah I mean when you're talking
about inculpatory evidence that is
evidence that's going to be presented by
the complainant it is this is evidence
that tends to show the respondents
responsibility and exculpatory evidence
is the other side of that coin that is
evidence this tends to show that the
respondent is not responsible
thank you and so the other one of the
other key concepts we talked about is
the the presumption I'm sorry is
credibility so here our credibility
determinations can't be made based on a
person's status as complainant
respondent so what our credibility
determinations how will they come up at
a hearing and why are they significant
well credibility determinations are
always going to come up in a hearing
because it simply has to do with the
believability of the witness
believability of the report and the
weight in significance to be given to
any evidence that's submitted and so I
think throughout the course of a hearing
the adjudicator is going to have to
weigh the evidence and make a
determination based upon his or
on experienced and common sense as to
what evidence is believable and what
evidence may be less believable
oftentimes in my experience you as
jurors are instructed you are to observe
the manner of witnesses while testifying
whether the evidence that they are
testifying to is something they directly
witness that is they saw themselves or
something that they were told that
happened whether or not there is
evidence that corroborates or supports
the testimony of the witness is there
any physical evidence or is it strictly
testimonial evidence is it
circumstantial evidence and you know
circumstantial evidence indirect
evidence we'll get into that a little
bit more later and then sometimes the
credible evidence is on both sides so
both sides are equally credible but
that's a determination that the
adjudicator is going to have to make one
need not be intimidated about this and
you need not be a judge jurist or lawyer
to make credibility determinations
jurors do it each and every day all the
time all over the United States so you
know basically as an adult you come into
this process as an adjudicator would
based upon life's experiences and I
think that qualifies you to do so and if
it ultimately ends up being a he-said
she-said situation as you mentioned and
the adjudicator finds that both sides
are credible then of course we look at
what the standard of proof is and and of
course then the adjudicator will likely
find it under those circumstances that
the complaint has not been sufficiently
proved so this will happen of course but
yeah I think that an adjudicator will
clearly be able to do this and the last
key concept from that first slide that
we talked about is that the presumption
of innocence or presumption of not
responsibility for the response doctor
ah can you get into what that means and
how the decision-maker would have to
have to understand this inside of here
yeah I think the presumption of
innocence that goes right along with
keeping an open mind it is because a
complaint has been made that the
adjudicator cannot assume either that it
proves it Dorit disproves that the
adjudicator simply has to keep an open
mind until everything has been seen on
earth and that's simply wait a minute
and that and that's I think that's right
and I think we'll we'll get into this
more when we talk about burdens of proof
to how it plays out but that's a very
helpful explanation here so moving on to
some other key concepts so first
decision makers also have to make sure
they don't have a conflict of interest
or bias and the regulations specify in
two separate ways so first for or
against complainants or respondents in
general so that could mean a decision
maker that has a bias against
respondents or our athletes or something
like that that would just disqualify
them completely they cannot keep an open
mind and the second piece you can have a
conflict of interest or bias against an
individual complaint it will respond so
even if you could keep an open mind in
general toward these the status of the
party assumably you might know the
individual complainant or you might know
some history about might have interacted
them in a way we can't keep it alive so
both prongs are important and
decision-makers need to ensure they
don't have a conflict or biases second
as Jenna alluded to is the standard of
evidence and schools have a choice
absent state law requirements of did the
preponderance of the evidence standard
or the clear and convincing evidence and
we'll explain what each mean and how you
evaluate facts under under both and the
last P concept for the slide is you
can't require allow rely on or otherwise
use questions or evidence that
constitute or seek disclosure of
information protected under a legally
recognized privilege
and we'll definitely get in into that
and the caveat here is that that that is
presumption is there unless the person
holding the privilege the person
actually waived them so judge Shaw let's
let's dig into the two standards so the
first one that schools can choose is the
preponderance of the evidence standard
um what does that mean so preponderance
of the evidence is typically the
standard used in courts in civil cases
and it's proof that a particular fact or
event was more likely than not to have
occurred and so we often talk about
preponderance of the evidence is 51
percent of the evidence on one side or
the other or if for instance on the
scales a feather is enough to make one
scale a little bit more than the other
that would be a preponderance of the
evidence perfect and then I like to ask
the same question I'm clear and
convincing and then if you wouldn't mind
just just expanding if you were an
adjudicator how would after explaining
very convincing how would each standard
apply how would you how would you
analyze facts on jury to be really
curious to know your opinion on that
okay so a clear and convincing is a
higher standard that is the adjudicator
needs to be firmly convinced it's not
beyond a reasonable doubt but it's proof
that a particular fact was highly and
substantially more likely to be true
than untrue so in in the clear and
convincing it's a higher standard but
it's not proof beyond a reasonable doubt
the adjudicator needs to be firmly
convinced more likely than not is the
lesser standard I think in many
instances it's going to be a 50/50
situation and in that instance then
the burden the standard has not been met
and and that often happens we hear in
trials for instance where he had a hung
jury and oftentimes the jurors will come
back and say well you know we thought
both sides were fairly believable or we
thought both sides were fairly
unbelievable so you know we determined
that the burden of proof was not met
here in the legal realm though clear and
convincing is a higher standard is that
is typically used under circumstances
where the conduct is considered to be
reprehensible or much more dangerous or
the penalties are much more severe and
so under legal standards that we use in
courtrooms the clear and convincing
standard is only used in those rare
instances and typically it's by a
preponderance of the evidence
yeah and that that's that's a great
distinction and it's just important to
emphasize that that the absent state law
requirement that mandates each schools
really need to think through which of
the two requirements kind of meets the
mission and the kind of the goals of the
institution and then apply that
standards for all formal complaints of
sexual harassment so let's move on talk
about live hearings that's another
requirement of the regulations for
hearings so under the standard
institutions are required to include a
live hearing in their formal complaint
process important to note and this is
especially important with with smaller
institutions that may not have a lot of
personnel to kind of manage all these
roles and a lot of people wear different
hats but it's the adjudicator here
cannot be the same person as the title 9
coordinator or the investigators so just
regardless of how many people have on
your staff you have to make sure your
adjudicator is not your coordinator or
your investigate oh absolutely
request from from parties live hearings
can be conducted either with all parties
physically present or with participants
appearing virtually and technology here
as we're doing in this training is
enabling everyone to see and hear each
other to kind of understand the
demeanors and the actions kind of see
everyone in addition to hearing but at
the request of either party so either
the complainant or respondent can make
this request and if they do schools must
provide with a live hearing to occur
with parties in separate rooms again
with technologies enabling the
adjudicator is the decision makers to
see in here the parties and the parties
are able to similarly see it hear each
other or witnesses answering questions
another obligations for schools is to
create or audio or audio-visual
recording or transcript of any live
hearing and make it available for the
parties for inspection so let's let's
now talk about the rules for hearing so
judge Shaw before we in the past couple
slides we've discussed what the
regulations require as a floor but the
regulations in preamble also explain
that that schools can institute certain
rules and conduct that that kind of fill
in some of the gaps for how a hearing
should should commence what are some of
the rules that institutions can adopt
and and should they yes
well Scott I mean I think it will be
very important for schools to adopt
rules of decorum and orderliness to
avoid chaos and these include the order
of the proceedings timing and length of
breaks prohibition on disturbing the
hearings and prohibition on badgering
are arguing with witnesses and I think
you know what when I reflect on my
experience when I first started it how
does the judge they start to kind of at
the bottom of the totem pole and I had a
lot of these hearings without lawyers
present or very young or any
perience lawyers but oftentimes they
were pro se that is people who were
unrepresented by lawyers and knew
nothing about court proceedings and I
heard small claims cases and like you
see on People's Court and let me remind
you though in real life people don't
behave as nicely as they do won People's
Court I had a lady hit a guy upside the
head with a high-heeled shoe one time
and another guy grabbed a folding chair
and hit a guy once a man you may even
want to consider having a security
officer present because you know these
are there is a potential for there to be
high emotion in the room and you don't
want the process to completely break
down because someone has been so
affected one way or another that is very
difficult for them to control their
emotions so to have rules of decorum and
order that the parties understand that
or explain that are repeated there is no
reason for there to have this kind of
unruliness and nobody can complain of
any ambush they know what to expect
what the process is going to look like
and how they're going to proceed and and
you know great points and just want to
add that any rules you do adopt as an
institution just getting back to that
first key concept of fairness and equity
bility need to apply equally to both
parties yes
so next let's let's move on to talk
about advisers and we'll start with the
requirements of the regulation with
regard to advisers
so first requirement is that schools
must afford parties and people
opportunity to have an advisor during
any aspect of the formal complaint
process so it's kind preview at the
start of the presentation formal
complaint processes to the term of art
and once that process is initiated
institutions have to afford the parties
and ability advisor advisors maybe an
attorney advisers may not be an attorney
advisor could be a friend a family
member of classmate there's no
prohibition and there cannot be any
prohibition on having an advisor also be
a practicing attorney so as schools
can't restrict the choice of advisor or
the advisors presence so in certain
situations you may be able to restrict
the activity of an advisor which we'll
talk about but the fact that the
advisors presence is there can't be
referred and that schools may restrict
participation in the proceedings
as long as those restrictions play so
this is this is the the big topic of the
new regulations I think we're going to
spend a significant significant amount
of time on that and really lean on judge
Shaw's expertise here but but first
let's get to cross-examination
requirement so adjudicators
decision-makers must permit each party's
advisor to conduct process examination
of any other party or any witnesses the
rules specified that the
cross-examination must be the live
hearing and conducted orally directly
and in real time
never the rules make very clear can
cross-examination be done by a party
post examination always has to be done
by the parties advised and if the party
doesn't have an advice it's the
obligation of the institution to provide
one to the student free of charge to
conduct that cross-examination
now when the institution provides an
advisor who can do it it can choose an
advisory of the institution's choice but
they still must provide an advisor
because how else that student will not
have the ability to to have to conduct
cross-examination and when
have the benefit of having someone
advising and when is so the department
here explains in the preamble why
advisors are are necessary so
cross-examination is a big touchstone of
the regulations and it's many times
discussed how it's the best engine of
determining the truth at heating and
that's why the department is very keen
on having this process here at these
hearings and the department makes very
clear that this is an adversarial
process it doesn't it doesn't have the
the same impetus or ability to get the
truth and point across if someone's a
neutral official conducting
cross-examination so so the department's
saying this is adversarial we want an
adversarial party conducting this
cross-examination and as we'll talk
about later that doesn't mean
adversarial does not mean inappropriate
or yelling or screaming or being rude it
just means that the interests of the
party conducting the cross-examination
are not the same as the interest of the
person on the receiving end um
so judge Shaw taking from from your
experience I think you give us a little
taste of that with your with your high
heel incident before but let me start
with with a question about adversarial
advisors so yep uh parties so if a
complaint and respondents advisor of
choice refuses to comply with the
schools rules of decorum that we
explained earlier so they're they're
yelling the other part either they're
being rude just things that aren't that
are not helpful or conducted can the
school require the party to use a
different advisement yes and as you
alluded to this guide I think this is
probably the area where there is the
greatest danger of loss of decorum
because the the phrase adversarial
proceeding can sometimes be mistaken by
some lawyers and and others who are not
lawyers to think that they this is the
chance to holler and shout and argue
with a witness what it means is that
you're allowed to ask leading questions
that is questions that suggest an answer
or propose an answer but in order for
the adjudicator to maintain decorum
there must be some means by which an
advisor who is completely out of control
can be checked otherwise the proceedings
fall apart and you never get anything
done and you can't reach any resolution
that way so I think this may be an
important process and an opportunity
coordinate an adjudicator to simply say
we can't proceed with this adviser let's
touch about that a little a little more
so on the next slide we're here talking
about assuming we have attorneys but
really it could be anyone it could be a
classmate or a parent that just is is is
overzealous potentially in good faith of
their of their potential advocacy on the
part of their their party um it's in
general how to how do you decision
makers how to presiding officers
maintain order well I think what happens
is typically the adjudicator at the very
outset of the proceedings when outlining
what the order of proceedings is and but
it will be and what is expected of the
parties it might be important to simply
point this out and judges often do this
now I say that there is a certain I
suppose a culture in certain courtrooms
and in legal settings where lawyers can
be very very aggressive and so this
could be a big problem but I have more
often seen in my experience from
non-lawyers who simply don't know that
it's inappropriate to become belligerent
and badgering but then again you know
there are lawyers who think this is a
way to impress people and this is an
opportunity for them to put on some kind
of show so I think it's important at the
outset
for the adjudicator to explain to the
parties that decorum will be maintained
at all times and should one of the
advisors for instance be incapable of
conducting themselves in a professional
way and while adversarial still with
some degree of decorum and patience then
they may have to be replaced because
everything will have to be done in an
orderly fashion
judge Shaw I'm I'm curious cuz I've
known you for a little while now and
you're the kind of guy where you walk
into a room and I think people behave
just because judge Shaw has walked into
the room was it always like that or or
you know do you feel like over the years
your ability to sort of maintain order
in a courtroom but that was there was a
gravitas and a style of maintaining
order that you sort of developed and if
the answer is yes how do you think you
changed what what are the things you
learned over twenty or thirty years that
you might impart to someone who's doing
this for the first time Aaron I think
it's a combination of things but mostly
what I learned is to be patient and the
recognition that as an adjudicator my
job was not only to be fair impartial
but for the parties to feel that they've
been treated fairly and impartial and so
that I tried to be very patient with
them but but sometimes you know the
quorum can be a difficult thing for
people particularly under very stressful
circumstances where emotions or engine
it's not like you have two businesses
that have a conflict if someone feels
that they have been personally wronged
or mistreated then that those emotions
can be right on the surface so I found
that a number of things when we talked
about this whole idea of decorum you
have to even think about the physical
space that you're in and how it's set up
and arranged such that it gives the
appearance of a certain degree of
formality in the proceedings but I think
the main thing
that I've learned and what adjudicators
need to practice is to simply be patient
with people explaining the rules clearly
to people and following those rules and
being patient with yeah I think a lot of
that certainly resonates and I'll just
make three points and I completely agree
with everything you said but the first I
think you're right that the recognition
that this could be the worst day of both
the complainant and the respondents life
and something they've never kind of been
involved in so the recognition of that
the compassion of that I think is
extremely important the second is I
think in the bench you you have the
trappings of a courtroom to help you out
and here you might just be in a
conference room banquet hall or
something like that so doing something
to to kind of lend the degree of
formality I think could absolutely be
there to help you and last point um I
mean to come from a pure legal
standpoint the fact that someone feels
heard and is able to to feel like the
process kind of worked for them
regardless of the outcome I think very
frankly it could help lessen the appeals
and litigation that could come versus if
someone just feels like the school
didn't listen you're railroaded dumber
or something so there are all great
points and I just wanna tell well I
couldn't certainly tell you guys from
the experience when when I first started
they were in the process of
rehabilitating the civil courts building
downtown and some of our courtrooms were
in the process of being reconfigured and
for those and and and they were shifting
personnel around so I did work in rooms
from time to time that were not
appropriately set up and where we did
not have security and I can tell you
that there was a very clear difference
in behavior in the parties in those kind
of setups where we didn't have it a
formal set up and we did not have
security interest very interesting very
interesting and varied I just had very
quickly along with security might also
want to think about mental health
resources and Student Affairs resources
and all those things out for these
situations but let's move on to a
different
cross-examination so what happens
according to regulations if someone does
not submit to cross-examination or
refuses to so if that's the case the
adjudicator cannot rely on any statement
of that party or witness in reaching the
determination responsibility there's a
lot to unpack there and we're going to
go through it in a few slides coming up
next the one caveat to be aware of is
the adjudicator can't draw an inference
for the determination regarding
responsibility based solely on a party
or witnesses absence so just because a
complainant or respondent does not show
up you can't take that fact into account
as you're reaching your determination so
first question judge very basically for
the purpose of these title 9 proceedings
what does it mean to submit to
cross-examination
submit to cross-examination is simply
that the person answered questions by
the opposing party absolutely and
there's the title 9 regulation state the
only questions that you are able to
answer our questions that are relevant
so I think right and and just before we
get into how the rules applied does this
exclusion of statement rule apply when a
part of your witness does not answer
questions by the adjudicator by the
decision no because the adjudicator is
not cross-examining delays that's right
simple is that oh you gotta give judge
sho harder questions I mean not address
with the simple stuff next one's a tough
one
this is an interesting one and this is a
this is going to be a very new concept
for for a lot of decision makers but the
rule on the exclusion of statements is
predicated on what a statement is Oh
judge ah what's the statement well as we
see here statement has Ordinary meaning
but doesn't include evidence
videos that did not constitute a
person's intent to make factual
assertions or to the extent that such
evidence does not contain a person
statement so a statement would be a
power statement by that party so police
reports sane reports medical reports
other documents and records may not be
relied upon to the extent they contain
statements of a party or witness who has
not submitted to cross examination yeah
no absolutely and let me let me just
follow up with that
how would it how would an individual or
a decision maker make a determination
realistically if if they can't rely on a
person's statements but there is video
evidence or something that's not a state
how would you as a decision-maker
mentally kind of be able to segregate
statements from from video evidence or
things that you can consume right so if
if a witness does not submit the
cross-examination then you cannot
consider their statements but video
evidence that is video evidence does not
that does not include a statement is
perfectly fine and I assume did any
other evidence regarding that witness
would be fine but simply that their
statements would be excluded because
they did not submit to cross examination
whereby the opposing party would be able
to test the credibility of those
statements so it just makes sense and
this this seems to me to be one of those
situations where adjudicators are
potentially being asked to unring the
bell right maybe you've heard those
statements you watch the video and now
you can't consider them you know
following up on Scott's question
I'm just curious just Shaw it has always
struck me that as an adjudicator that
notion that you have to set aside things
that you may know you have to unring
bells that you have heard and run has
got it's got to be really hard in
practice to do I would think even for
someone who's a seasoned adjudicator
like yourself any tips on
as to how folks can try to do that well
I think we have to go back what I talked
about before Aaron about keeping an open
mind and one keeps an open mind
throughout the proceedings until
everything has been seen in hurt and as
the adjudicator is considering what if
anything is being regarded as credible
or not credible then you know the
adjudicator has to be very conscious of
the fact that certain items then cannot
be considered whatsoever in the ultimate
decision so did you the Judah cater you
know it's it will not be an easy job I
can tell you from my own experience you
know this is why often times judges much
prefer to have jury trials because the
jury has in many ways the harder job
which the adjudicator will have of
determining credibility and the weight
and value of the evidence judge often
times in a in a jury trial you're just
calling balls and strikes and in many
ways that's that's an easier job but for
adjudicators to have to determine
credibility and weight of the evidence
is a difficult job and so they
constantly remind themselves to keep an
open mind and what evidence am i
considering and let evidence am I not
allowed to consider in making my
ultimate determination so next next for
you judge shot just maybe maybe we
talked about this but but in these
proceedings canna decision-maker ask
questions and parties and witnesses yes
and of course that makes sense when I
was a judge in bench trials there are
often things that I had some concerns
about or no once the lawyers or advisers
ask their question if there is something
that before the witness leaves or is
concluded then perhaps the adjudicator
has a question that he or she wants to
know the answer to this material to the
decision the end of the adjudicator is
it's a perfectly appropriate for the
adjudicator to ask that question and
should ask and and to the extent and we
talked about earlier relevance one of
the concepts the Department
is that repetition of questions so ask
me question a second time even if the
first one was relevant second one is
considered irrelevant it was already
asked so to the extent that a decision
maker asks a question and it's repeated
by attorneys on cross-examination or
direct exam whatever examination that
might be irrelevant and something for a
decision maker and presiding officer to
be aware of so the next question for you
judge Shaw is about the what happens
when and advisor is is not there so a
party has the choice of an advisor if
that person does not choose an advisor
and the institution has to provide one
when is an advisors cross-examination on
behalf of that party well you know this
I think the purpose of this is to assure
that the party is satisfied that their
advisor has properly represented it and
so that if the party has a relevant
question and they've asked their advisor
to ask that question and the advisor
refuses to do so then the
cross-examination is not steps and so
this should be brought to the
adjudicators attention but I would have
to think that this would be a rare
circumstance where there is a relevant
question you know there may be some
conflict perhaps between the advisor and
the party the adviser says well it's not
relevant that maybe this person cheated
at marbles when they were in
kindergarten you know it's not going to
be something important to the
adjudicator so you know the further away
you get from the conduct complained of
involving the parties involved in this
particular complaint then it may not be
relevant and just just one thing going
on that is it's a fairly low standard
that the preamble is out cross
examination to be satisfied does not
require any advanced legal training to
do that institutions are thinking about
advisors to appoint they should keep
yeah
great so moving along so can a heart so
in the situation where a party doesn't
appear can a party's advisor still
appear and conduct cross-examination
even without their party yes yes and
that makes sense you know I can envision
circumstances where a party may not
appear but yet still the testimony of
the opponent can be tested by the
adviser so judge file last question here
before I give you a little break select
let's think of a situation where a party
complainant or respondent doesn't appear
but that person had recounted exactly
what happened at issue to a friend or
family member minutes after the incident
took place and that friend or family
member is more than willing to come and
provide testimony for exactly what they
were told by the respondent complaint is
that allowed under the rules no it's not
allowed under the rules Scott and that's
basically a rule of fairness if the
party did not submit to
cross-examination about the validity of
these statements and the truthfulness of
these statements and it simply would be
unfair to have a friend or a family
member come in and submit this for
evidence great thank you to Shawn yeah
so let's let's take it now into into
relevance and we introduced the concept
at the beginning with a few key concepts
and we went over the basic definitions
but we're gonna let's dive a little bit
more into into exactly what that means
so we forgot to cross-examination you
mention earlier only relevant
cross-examination and other questions
including those challenged to
credibility may be asked of a party or
witness so in terms of questions that
can or cannot be answered the one thing
to remember is is it relevant or is it
not a new interesting part of the rule
and one that that really presiding
officers need to understand depth and
we'll get judge Shaw's Apennines on this
is that before a party or witness
answers cross-examination or other
another question the adjudicator the
presenting officer must determine
whether the question is relevant and
explain any decision to exclude a
question is not relevant the weight on
that slide come in all right
so first well the one more thing so
questions and evidence about the
complainants sexual predisposition or
prior sexual behavior so here this is
for those familiar with legal concepts
this is this is a kind of rape shield
protection the rules say that those
those concepts are not relevant with two
exceptions so the first exception is the
questions or evidence about a
complainants sexual predisposition or
prior sexual behavior are offered to
prove that someone other than the
respondent committed the alleged condom
and second such questions are evidence
concerns specific incidents of the
complainants prior sexual behavior with
respect to the respondent and are
offered to prove consent so these are
concepts that decision makers need to be
aware of should they come up my
experience I wasn't too often but
they're they're very kind of nuance so
judge thought we mentioned one of the
new things for a presiding officer is to
make a relevance determination effort so
first can you explain what's required of
a decision-maker during the
determination and also just based on
your experience kind of handling these
in the courtroom but some advice or best
practices you can give for educators
well this is a very interesting
requirement because in a courtroom the
judge is only required to give
explanations went first of all there has
to be an objection and often then the
court simply says objection sustained
and doesn't even say why so this is a
very interesting requirement I think for
most jurors the the idea is when an
explanation is given is that the shorter
the explanation the better because it
does not invite argument by the other
side when I looked at this whole issue
girl I thought if it probably fit within
the whole concept here of badgering the
witness or as you sets that under rape
shield laws that prevent the kind of
character assassination based upon some
allegation of provocative conduct or
promiscuous panda in general but at any
rate I think that it should be enough
for the adjudicator to simply either say
that the evidence is relevant and and
again I would probably err on the side
of letting evidence in unless it is
totally and completely off the wall
irrelevant because I think again you
know you want to give the parties the
feeling that they have been fully heard
but if something is completely
irrelevant then I think it's the duty of
the adjudicator to say that the evidence
is not probative of any material fact
leave it at that I think that that's
that's a perfect point and we provided
the citation to the preamble that lists
exactly those words this is what the
department says it could be a sufficient
explanation so exactly is Judge shall
explain so it's not probed with any
material fact inserting the allegations
that's what the department said
sufficient so judge Shaw and the
department both think that's sufficient
and yeah consider it
yeah and I'll just add if you're an
adjudicator a potential adjudicator and
you're watching this and that didn't
make sense rewind it and watch it again
because the idea here is both the
department and judge are suggesting that
a simple approach
is not only allowed but appropriate and
in addition and I mean the natives could
simply derail the entire process you'd
be gone on and on because at each
cross-examination question particularly
in the adjudicator must make a
determination so if there is a lengthy
cross-examination you can exponentially
expand that cross-examination by giving
these lengthy explanations and there's
no purpose for doing great but that's a
great point and that leads I think
nicely into the next question so judge
Shaw
I'd assume an advisor that just had
their question deemed irrelevant by an
adjudicator presiding officer would want
to eject so the question here is can a
school adopt a rule apply directly for
both parties always that gives or does
not give advisors the right to to kind
of have those relevant discussions after
decisions well as you said Scott and I
think this leads directly from what I
just said I think it would be best to
not invite arguments by the parties over
these relevance determinations and I can
tell you from experience that when you
invite these kinds of arguments and
discussions they can derail the entire
process and now I was reminded the other
day about a particular attorney who
wanted to who would never give up
argument and almost to the point where
I've wanted to hold the lawyer in
contempt the court for this so I think
you know perhaps there are circumstances
under which the adjudicator may want to
exercise some discretion and ask why you
know maybe the adjudicator is not you
know there are circumstances that I'm
not anticipating here but where the
adjudicator feels well maybe I'd like to
hear from you why do you believe this
Israel but I think in most instances it
would be counterproductive to allow
there to be argument and discussion
about each of the adjudicator
determination
wavern yeah that's right I think that's
a great point and end to that to that
point according to the preamble here if
a school makes the determination that
they do not want these arguments they're
permitted to build that into their
process so just as in addition to the
rules of decorum and the rules of the
oral proceedings just explain that will
make it that judicata makes
determination and that's final final
word yeah I think that is the better
choice but I would I would pair that
with the idea that the adjudicator
should be fairly patient and if there is
a question in the adjudicators mind
about is this potentially relevant then
there should be the tendency that listen
to it and reject yeah helpful caveats
absolutely so one question quickly on
credibility and I think it goes into
managing the live hearing that we talked
about and we're getting a little bit
ahead of ourselves because in the next
section we're going to talk about
specific types of evidence including
character evidence bad acts but because
we're talking about relevance and alive
hearing - they're talking to give us a
little preview of what what character
evidence and evidence of prior bad acts
is and and then explain and relevance
character evidence and relevant evidence
and prior bad acts and cross-examination
be excluded by a presiding officer yeah
I mean prior bad acts on
cross-examination should not there is no
blanket rule excluding them and
typically in court we discuss what's
called other similar incidents and so it
is certainly relevant the closer the
prior bad act is to be to the allegation
or the complaint under consideration to
the extent that it involves the same and
party or parties and that's going to be
relevant but the further you move away
from the act or conduct complained of
here
the further away you move from the
parties involved here the more likely
its to be irrelevant in court
proceedings that are often hearings held
ahead of time to make a determination as
to whether or not some bad conduct or
so-called other similar conduct is
relevant and I think that's what the
adjudicator has to consider so there is
no blanket rule excluding it and to the
extent that the conduct is similar to
the conduct complained of and
particularly if it involves the same
parties then that's going to be relevant
evidence and I think that's that's a
perfect point and we provided you that
the preamble site really just to
emphasize that the touchstone here
whatever you're thinking about types of
evidence is is it relevant or is it not
and then the last judge our leader had a
way for advice on weighing different
types of evidence but for the purpose of
this slide and and this point just want
to re-emphasize that if the evidence is
relevant then it comes in needs to be
considered all right so the burden of
proof so moving right along so the
burden of proof and the burden of
gathering evidence by regulation
evidence sufficient to reach a
determination is on an institution so
this means it's not up to the respondent
to prove that they're to prove anything
that for the complainant to prove
anything so the institution can't access
consider disclose or otherwise use a
party's medical records about written
consent that's an important piece is a
lot of these potential offenses there
are medical records in follow and
especially does talk about treatment
records as such judge Shaw I think I got
a little ahead of myself in the next
question because this one's for you
but what does the burden of proof here
and I know it's different from your
experience in the legal sense but from a
title 9 perspective what does the burden
of proof mean in terms of reaching the
determination
well the burden of proof in in my
experience and of course it will be for
the adjudicators here is this is the
standard by which they determine whether
or not the complaint has been proven and
it's again as we discussed was there are
preponderance of the evidence it or is
the adjudicator required to find that it
was by clear and convincing evidence so
it's simply the standard by which the
adjudicator weighs the evidence and this
side this has there been more evidence
than the other side presented is it just
one person's word against the other and
these people are equally credible or
under the circumstances where there is a
clear and convincing evidence is the
adjudicator firmly convinced that the
complaint is true then it's it's what
the adjudicator to make that
determination and that's the standard
that they have to use you know
ultimately it falls on the school that's
the idea of these the title nine
obligations fall on the school and the
ultimate burden falls on the institution
yes yeah and important to treat the
parties as such that to not consider the
complainant is having to prove his her
case and not having to the respondent to
to prove his or her innocence or Nam's
breath so we previewed this a little bit
the the types of evidence
so I think just refresher from the last
slide we talked about evidence we
mentioned all relevant evidence to be
included but there's bring types of
evidence and some is actually more
valuable than the others so judge
talking just give us a brief explanation
of different types of evidence that
decision-makers may see and which
evidence how things should be weighed
and and which is more valuable of course
so you have direct evidence
circumstantial evidence hearsay
character
fire that axe so direct evidence the the
example that lawyers often talk about
and in law school is direct evidence is
a witness who is able to testify that
they actually saw between being
complained of so it's the cookie jar
example is the parent walks in and sees
the kid eating cookies from the cookie
jar
that's direct evidence I saw the person
doing the thing from blind up
circumstance to evidence though is not
seeing the actual thing complained of
that seeing evidence that indicates the
person did the same complained of so
this is where the crowd walks into the
room the kid has the empty cookie jar
sitting in the lab and there could be
problems around the child's mouth and in
their lap that would be circumstantial
evidence that the kid ate the cookies
but you know circumstantial evidence can
be more attenuated than that it could be
that there were cookie crumbs leading to
the kids room or whatever well it is
though is simply evidence that it's not
direct it is directly saw the person do
the thing complained of but
circumstances that tend to indicate that
the person did to think complained of
hearsay evidence is evidence offered by
a party who neither saw the thing
complained of or saw circumstances
leading to the thing complained of but
heard someone say something regarding of
the event that is it's evidence offered
by a third party not an actual witness
to be that but offered for the truth of
what they saw or what they heard
actually character evidence is evidence
regarding a person's prior character for
truthfulness and honesty and prior bad
acts I have to do with what was this
parties conduct with regard to relevant
evidence that had to do with them doing
something that is
would be similar to the event complained
of and typically involving the parties
in the case where the complaint is being
heard perfect and I think if you if I
had that explanation when I was taking
evidence I might have learned it a
little better I you know I was thinking
the same thing that's the cookie example
is so so apt I may use that with my kid
I have three middle schoolers and I feel
like we get a lot of circumstantial
evidence around the house definitely
some hearsay definitely some character
evidence so let me follow up though on
those great examples so institutions any
of those pieces of evidence you just
mentioned need to be considered if
they're relevant but institutions can
adopt rules that have different weight
for coming different so what's your your
sense of a kind of a 30,000 foot view of
how schools might want to weigh
different types of evidence direct first
at surface - versus the others well
there are a couple of ways to look at
this guy
typically fact finders whether they be
jurors or jurors are told that there a
variety of ways to weigh the evidence
and so we we learned that in considering
the weight and value of testimony of any
witnesses that the fact-finder in this
case the adjudicator can take into
consideration a number of things the
appearance attitude and behavior of the
witness the interest of the witness in
the outcome of the case the relation of
the witness to any of the parties in the
inka the nation of the witness to speak
truthfully or untruthfully the
probability or improbability of the
witnesses statements but ultimately the
fact-finder and in this case would be
the adjudicator should give any evidence
for a testimony such weight and value as
they believe the testimony is in
title to the sea it all comes down to
that so I think that if there if
institutions want to create rules it
should be a general rule to the effect
that the adjudicator shall give any
evidence or testimony of any witness
such great weight and value as they
believe the evidence the testimony is
entitled to receive because as we
discussed before there are always going
to be credibility determinations and so
whether evidence is direct
circumstantial hearsay character or bad
acts it depends on what that evidence is
and how credible it is so and only the
adjudicator can make that determination
I understood and I think those are those
are really important considerations to
have but based on your experience is
there one is there a type of evidence
that would be more useful adjudicator
than other types of evidence for sure
for sure and you know it's the kind of
evidence that common sense tells you is
going to be the most heavily weighted
evidence and that would be direct
testimony of direct evidence by a third
party who has no relation to any of the
parties and is a completely objective
observer that kind of evidence it's like
an eyewitness to an event who knows
neither of the parties and is not
affiliated with in the institution
whatsoever so that evidence obviously is
going to be the most credible and then
probably but see it all depends you know
but just as a general proposition if a
witness or the evidence submitted is in
relation to one of the parties or with
relationship to one of the parties
either personally or professionally and
it is either hearsay indirect or
circumstantial that evidence is probably
going to be less heavily weighted
understood yeah and I think that that's
a good point for adjudicators to to
realize that
there's a lot of factors that go into to
how you weigh evidence and it's it's
really kind of will be you and that
that's why it's important that the
adjudicators are the one that makes that
decision as they objectively evaluate
that relevant evidence let's move on to
talk about other pieces and access to
evidence so the rules explained that the
regulations explain that throughout the
hearing institutions must review and
afford to both parties equal and afford
both parties equal opportunity to review
and inspect evidence that was obtained
as part of the investigation and is
directly related to the allegation so
here one of the terms here is directly
related so here we're not talking about
relevant evidence I'm talking about
evidence related to the allegation
that's broader than potential and this
includes evidence that the school
doesn't intend to rely on including
irrelevant evidence and inculpatory and
exculpatory timing as this chart is
important for for institutions to keep
in mind because you will want to keep
these deadlines in mind so the extent
that there are deadlines and build them
into your process so generally the the
kind of the touchstone goal to keep in
mind is that institutions have to
provide access to evidence early enough
that each party can meaningfully respond
to the evidence prior to the conclusion
of the investigation so this makes this
makes sense if for asking people to to
react to respond to be judged upon this
evidence you want to make sure people
have access to understand it second so
prior to issuing the investigative
report the investigator would send all
parties evidence subject to review an
inspection and a four of these ten days
to submit a written response to review
from other presentations but helpful to
keep in mind and again ten days prior to
the hearing or other determination is
the investigative report must be sent
for the parties to review and provide
response and after during in the hearing
which is important for for here and for
the investigators all evidence available
to parties
must be made available parties and equal
opportunity to review that evidence
including for the purpose cross identity
and then that brings us to our last
topic here and another questioners for
judge Shaw so I think way back at the
beginning we talked about legal
privileges and how they have they may
arise in the presentation in the hearing
and regard to questionings by
adjudicators you just explained what are
what is a legal privilege and how and
why would it apply here a legal
privilege means that the law recognizes
that there was a communication made in
confidence and that confidence is
honored by the law and so the the law
recognizes that there are certain
relationships in which in order for
those relationships the function as
intended and as the law provides then
there must be some recognition that
those communications or remain or made
and remain confidential
so here we have attorney-client priests
penitent doctor-patient and spouses and
so in order for the attorney-client
relationship to function as it should
the client should be permitted to make
communication or enter into
communications with their attorney with
the understanding and assurance that
those communications will remain
confidential likewise with the priests
penitent statements made in
confidentiality with the priest are to
remain confidential
likewise with patient doctor likewise as
between spouses but I would point out to
you that the statements need be made
under circumstances indicating and
that they be made confidentially now
that's typically not going to be a
problem with attorney-client
circumstances but you may occasionally
hear of or encounter circumstances where
an individual made a statement and a
priest happened to be present or made a
statement to a group of people and a
spouse happened to be present if if this
statement is made under circumstances
not indicating an intent that the
statement be kept confidential
then the privilege does not apply now of
course this though the privilege can be
waived in that way if it's made publicly
and in front of others where there was
no indication that there was intent that
it was done with an expectation of
privacy but under any circumstances
though the client the penitent patient
or spouse can waive the privilege and
say I have no objection to that
statement being publicly divulged and so
you have to examine each of the
circumstances but as a general
proposition these kind of confidential
statements are inadmissible I think
those are great points let me ask you
one last question put yourself in the
shoes of an adjudicator and potentially
privileged information doctor-patient
information is disclosed at the hearing
and the holder of the privilege does not
want that information to be disclosed
but as adjudicated you've heard it what
what would you do in that situation
well let's I'm glad you raised that
because there are certain statements
that are made to a doctor that a patient
may make to a doctor that are not
considered to be privileged statements
and then patients often make statements
to their doctors that are offered for
here and treatment and that are vital to
care in treatment and those statements
the patient obviously knows are going to
be shared with nurses and
medical attendants and so forth and so
on and so those statements may not be
privileged statements and and so that's
assume for the purposes of this question
though that it is determined to be a
privileged statement and the adjudicator
has heard it and then ultimately
determines it's a privileged statement
the adjudicator must disregard that
statement is if it never existed and
with that Aaron I think I'll kick it
kick it over to you
Thank You Scott and thank you both for
taking the time to walk our viewers
today through what is really a difficult
concept just a reminder we have some
resources available to you the Office of
Civil Rights first of all it's actually
their resource has a blog you can click
on this picture of the webpage if you
have the actual slide deck but otherwise
you can probably just google office for
civil rights blog and I expect it will
pop right up this is where they've said
they're gonna put their guidance and any
further information on this rule as as
we move forward so if you are a title 9
coordinator or are someone who's trying
to keep up with changes in the rule you
want to be sure to keep an eye on this
particular website we have a comparison
document that should be available in the
same place where you find the slides for
these presentations and it just shows
you the changes the new rule made to the
existing rule and if you're like me or
your council or title 9 coordinator or
just curious you may really appreciate
this particular view we have a higher ed
webinar series these are free webinars
we do every year between August and May
we sort of track the academic year
they're all about topics in higher
education and they are free they are CLE
certified if you're an attorney and you
listen in live and if you can't listen
in live they are available after the
fact on demand you can go to our t CLE
website and all our webinars across our
firm are posted there and you just click
on the box and they pop right up we have
a blog that talks specifically about
higher education policy and regulation
and we're talking a lot about the cares
Act right now as you can see on the
screen but we also discuss matters
involving title 9 from time to time
and finally we periodically make
available various publications that are
really designed to be tools for the
community like our bar defense rule
reporting guide if you'd like to sign up
and get our alerts or information along
those lines regard
when we put out some new document or
white paper or tool just let me know and
we're happy to get you signed up finally
I will say on behalf of myself and Scott
and Booker we really appreciate you all
tuning in we hope if you've been
listening all along and you've gone
through the first several sessions that
you found them useful
we hope you'll stick around because
there are a couple more sessions here at
the end that are also quite good and I
will say at the very end here
understanding once again that we're in
the midst of the pandemic more than
anything from Booker and from Scott and
from myself we hope that you will be
safe and be well
you