hi my name is aaron lacey and i'm the
chair of the higher education practice
at thomson coburn llp
and you are listening to title ix
determinations which is part of the uh
our thompson coburn title ix training
series so we welcome you back if you've
already listened to some of the
prior presentations uh thompson coburn
for those who
may not know is a law firm uh in the
midwest
and we also have uh locations around the
rest of the country we're pretty big
firm and i mentioned earlier we have a
higher education practice we have
a number of attorneys who focus on
working with colleges and universities
and institutions
of all types providing them counsel on a
range of matters including those
concerning
discrimination laws so discrimination on
the base of sex or race
or other protected classes today
well let me start and say the purpose of
this training series as some of you may
know the u.s department of education
recently published its first new title
ix rule
in about four decades it becomes
effective on august 14th
2020. we're recording in july 2020 so
amidst
the covid uh pandemic you'll notice that
my co-presenters and i are all in
different
offices our homes right now uh as we put
this training series together
um but we wanted to create some training
so that institutions that are working
towards compliance with this new rule
uh could utilize it we know with you all
dealing with the pandemic and
as well it is particularly difficult
right now to figure out how to
provide training to all the folks who
are going to be part of your title ix
process and one of the things that this
new rule has done is created a fairly
elaborate and complex
set of requirements for the management
of formal complaints of title ix
sexual harassment on campus so if you're
an advisor or adjudicator an appeals
officer
or investigator you're going to need
training and we wanted to try to
make that available it's free we hope
you'll watch it and we'll help you watch
all the modules at least that would be
of use to you we'll also just make clear
we're very happy for institutions of
higher education to post this on their
website
one of the sort of interesting wrinkles
of the new rule is it actually requires
schools to take all of the training they
use
for their different folks in those
different positions
and to post it on their external website
so just to be clear
we're very happy for you to do that that
is one of the reasons we created
this training if you would like custom
training to supplement what we're
calling this foundational training
series of course
we'd be happy to talk with you about
making that possible
the series consists of six modules and
in every
training session at the beginning we
show you this slide uh and the
box that's highlighted orange here you
see determinations it tells you where
you are
in the training series so hopefully if
you're listening to this one you've
already listened to the first four but
it's okay if you haven't you're also
perfectly welcome to just jump in so
today we are talking again about
determinations and formal title
ix uh formal complaints of title ix
sexual harassment
uh this is the syllabus for this
particular session
so i'll start out as i always do with
just a little bit of a recap and
and some context uh and then our uh real
core presenters today will get into key
concepts format and content
format and content and other issues that
concern the writing of determinations
following uh an investigation and a
hearing
speaking of co-presenters i'm joined
today again and if you if you previously
listened to our investigations
uh uh module then you've already heard
from susan
and scott two of my uh friends and
colleagues at the firm
susan is a long-time hr employment
attorney and has done many many
investigations
uh and written many briefs uh and
co-authored and ghost written i suspect
many determinations over the year
uh years involving matters of
discrimination based on sex and scott
was the former deputy general counsel at
catholic university was there for about
a decade and spent
has spent lots of time thinking about
title ix issues over the years
as well so as soon as i get through this
little introductory section
i'll turn it over to susan and scott and
they can really get into
the nuts and bolts of determinations
with you so speaking of
the introductory section here um i like
to always start with a brief discussion
of the title ix statute just to remind
you that
the statute itself is pretty old was put
into place back in 1972
and broadly prohibits discrimination on
the basis of sex at institutions of
higher education
i make the point in every session and
i'll make it here again
sometimes when people think about title
ix they think of it fairly narrowly
either
just in the context of equity and
athletics or these days maybe just in
the context of
allegations of sexual harassment but to
be clear the statute prohibits
discrimination on the basis of sex
in all programs and activities at an
institution of higher education so
that's not just
uh on the athletics field that's in the
classroom that's in
extracurricular services all those
different aspects it's also important to
note that it covers both
students and employees and one of the
real
emphases of this particular rule making
has been
the idea that this title ix process and
including the formal process for
managing complaints of sexual harassment
also covers employees at the institution
not just students and for many colleges
and universities that's a little bit of
a change
in the way that they've been thinking
the tie nine statute applies to all
institutions that take federal funding
including those participating
in the federal financial aid programs
which is most and it's enforced by the
office
of civil rights so congress created the
statute that's the way our laws work
right
and then they said to the u.s department
of education now we've given you a
statute that's pretty bare bones and we
want you to create a regulation that
adds
a lot to it and sort of explains to
institutions more about what they are
allowed to do and what they should not
be doing and the department did that way
back in 1975 it issued a broad
regulation
under the title ix statute um it
includes some core concepts that most
institutions certainly those we hope
that are listening in already have in
place
uh you have to have a title nine
coordinator you have to have a
non-discrimination statement you need
a process to manage complaints of sexual
harassment
or discrimination on the basis of sex i
should say it is broader than that
um and then finally you have to take
action to address
uh sexual uh discrimination or
discrimination on the basis of sex
that's already occurred
and also to try to prevent it from
occurring in the future
if you would like to see this new rule
that was put out earlier this month it's
in the federal register
and you can click if you have the actual
slide deck which should be
near wherever these videos are posted
you can pull up this slide and there are
active links including this you can
click on that box and it'll take you to
the page of the federal register so you
can actually look at the commentary
which is uh over a thousand pages even
in the
federal register format and also you can
look at the regulatory language which is
at the very end by the way if you go to
this website the new rules themselves
are the very last
part of the federal register entry the
last slide i want to hit on before
turning it over to susan
scott is this graphic that you've seen
um i'll say it's the last slide there's
a couple more but but but an important
one here
is this graphic you've seen in every
session and it's our way of trying to
demonstrate
sort of the breadth of the uh title ix
statute
and then the focus in of the new rule on
formal complaints
of sexual harassment so i mentioned
earlier the statute itself
very broadly prohibits discrimination on
the basis of sex and institutions have
to have a process
grievance procedures in place to manage
any kind of complaint or allegation
of sex discrimination so someone thought
you know so and so was hired
or promoted over me on the basis of sex
and that's discrimination
that would be a complaint under title ix
and you need a process in place to
manage that but that's not sexual
harassment right
so the new rule is more tightly focused
on
what it calls title ix sexual harassment
and in one of our earlier training
sessions scott
actually walked through this new
definition of title ix sexual harassment
i think that's in the very first session
of the series or the first module
um but even more tightly within that
there's this concept of a
formal complaint of title ix sexual
harassment so
if you have a complaint of sexual
harassment but it's not a formal
complaint there are some things that a
school has to do again we tackled that
in the first module
but if and if an institution receives a
formal complaint of title ix sexual
harassment which is a specific kind of
thing
then there's all this additional
machinery that's put in place and the
new rule is primarily focused on
that process for managing formal
complaints and that's what
four or five of our six modules are
focused on is this
formal complaint process and if you're
listening today and you're an advisor an
adjudicator an investigator to be
or already serving in one of those roles
this is really the process where you're
going to be most involved is when a
formal complaint
is actually filed a formal complaint as
i mentioned is a pretty specific thing
so that means there was a document filed
a written document
by either the complainant the person who
is alleged to have
experienced the title ix sexual
harassment or a title ix coordinator
right alleging sexual harassment and
requesting that the institution
investigates so you could have sexual
harassment without a formal complaint
and you would still have some things to
do
we're really focused on the formal
complaint right
um for the purposes of addressing a
formal complaint if you have one
the new rule lays out a pretty robust uh
set of requirements that institutions
have to satisfy and here
you'll see all those different
requirements right so it goes through
and you can see there's
complaint dismissal consolidation notice
of allegations informal resolutions
hearings
determinations and appeals all different
kinds of things that you have to do
today we're actually focused if you look
down here you'll see there's one on
determinations and it's that one
category and that's the category that
we're going to talk about
today in this session so with that
introduction being out of the way
i will gladly turn it over uh to uh mr
goldschmidt
and miss lawrence scott and susan please
take it away perfect thank you aaron
thanks for the introduction
uh and again happy to be with you and
hopefully uh
illuminate some of these concepts uh so
here we're gonna start broadly with with
some key concepts
uh about um just the the regulation and
things that you should be aware of um if
you've recently seen
the previous uh modules that aaron
mentioned they should be familiar with
you
um if not we really go into detail about
the meaning of each in the
investigations and hearings modules so
i'd encourage you to go back and listen
to those if you have specific questions
about
uh about each one of these elements but
important to set the stage so that we're
all
on the same page and everyone's
refreshed of what the concepts are
so the first that kind of permeates the
entire regulation
and goes to the spirit of what the
department's trying to do here
is just complete treat the complainants
and respondents equitably so anything
you do
for for complainants any way you treat
complainants
the same way uh the same treatment and
allocation and everything
should be for respondents as well second
there's a requirement to objectively
evaluate all relevant evidence
and so that means that includes
inculpatory evidence
which shows or tends to show a
respondent's responsibility for
conduct an ex-cop which goes or tends to
show that the respondent's not
responsible for the conduct
it's important to objectively evaluate
that evidence and provide
and it's also a requirement that any
credibility determinations made
are not based on a person's status as a
complainant
respondent or witness so you really just
take everything as objectively as
possible
and kind of don't let any of these
labels affect the way you uh
treat and understand the parties
involved
next uh just to understand and make
clear that there's a
presumption uh that that that's included
and that everyone should be aware of
that the respondent is not responsible
for the alleged conduct just because a
complaint has been made so just because
a formal complaint's been filed
the respondent is not automatically
responsible or
tend to be responsible or just judge the
judge the respondent is only responsible
after a determination is made at the end
of the grievance process
next important to understand the
standard of evidence
so schools have a choice between either
the preponderance of the evidence
standard
and the clear and convincing standard uh
there's a there's a lot of kind of uh
thought that goes into which one the
school might apply including state law
overlays
uh and any other agreements you may have
um
which is discussed in another
presentation but once you determine
the standard of evidence make sure you
understand that that's
the lens that you're reviewing the
evidence and making your determinations
based off of
and last don't require allow
rely on or otherwise use questions or
evidence
that constitute or seek disclosure of
information
uh protected under a privilege a legally
recognized privilege so attorney client
privilege doctor patient
priest penitent those are potential
privileges that a
um an individual might enjoy and
unless that privilege has been
affirmatively and knowingly waived by
the individual holding that privilege
you should not
seek to that information rely on it so
it's important to understand that
that those can be appropriately made
here in this in this process
next a little bit about the the format
and content so here
as i mentioned this is this is we're
talking about determination
so investigations happened the
the hearing process has happened the
board is
the adjudicators decision makers if
there are more than one
are meeting and are about to kind of put
down their their final
uh analysis of the facts and evidence
into a document so so what do you do
so first thing to include uh is the
allegations
so right up front most likely identify
the allegations
of sexual harassment in the document
second is a procedural restitution
so after the allegations
explain what steps were taken in order
to
to get to where you are so from receipt
of the formal complaint
to the determination what steps were
taken so any notifications
interviews visit site visits
methods used to gather evidence hearings
held anything like that should be
included
this is your chance to to kind of work
back from the regulations and make sure
that that you have identified all the
required procedures
that are that are that are mandated to
institutions but assuming you
have complied and you have done all
these uh
procedural elements you certainly want
to get credit for it so list it there
and kind of lends credence to the fact
that this is a
thoughtful deliberate robust process
that went through a lot of um
a lot of a lot of effort and procedural
protections on your part
next the findings of fact uh so what
facts support the ultimate determination
that's made and citations to evidence
and
record only strengthens your your case
here
the conclusions a lot to unpack here so
conclusions
regarding the application of the
school's sexual misconduct policy to the
facts so this is the
the overall outcome here
has to include a statement and rationale
uh for the results as to each allegation
and that has to include a determination
of responsibility
in light of the standard of evidence any
disciplinary sanctions the school
imposed on the respondent
if applicable and whether the remedies
are designed
to restore or preserve equal access to
the school's educational
program to the complainant so to the
extent that
that that restore or preserving access
is important
concept and part of the goal of title ix
to make sure that everyone has an equal
access to education
the ways in which any disciplinary
sanctions imposed
if at all get to that goal
that they restore or preserve equal
access that should be explained as well
and last this should this might be right
in your policy
but an explanation of the procedures and
permissible bases
to appeal so susan over the past two
slides we just went
over what was included in format and
content required for determination
my question for you is how does knowing
that at the outset inform the way
that decision makers might approach
questions to a hearing
or the hearing itself or or the
determination letter
yeah i think that's a great question and
certainly can be daunting
for a novice adjudicator so i think
what's important
is to look back to the complaint or
complaints itself and allow those to
really guide you
in what the information is that you need
to glean
and what the elements of those claims
include whether it's looking back at the
policy
or whatever information was provided in
the investigative report and letting
that form the
the script so to speak and checklist
of the way in which you're going to
approach the written determination
and the hearing itself my next question
um is
about the evidence that you would
include uh in a written determination
so presumably at this point of the
hearing um there's been some whittling
down of
evidence and relevant evidence but
presumably decision makers have
a a mountain of evidence that they are
presented with
and not all of it they find relevant to
um
to the actual determination so i'll
start by just explaining
the preamble to the to the rule notes
that the department
does not require the written
determination uh to include
all facts all evidence all contradictory
facts all exculpatory evidence
because in the department's mind
decision makers have an obligation
already
to review and objectively evaluate all
relevant evidence
but susan from a practical perspective
how does
a decision maker take this evidence
knowing that they don't have to include
all of it and and kind of make a
decision about what evidence should be
included
yeah and ultimately that is their role
as the adjudicator to make those
decisions
so they have to be guided by the
investigative report and what evidence
was
included and relied upon during that
they also
need to be making the credibility
determinations that the investigator
for the most part did not and should not
have have done so
which is not to say that they do need to
review everything or
include everything in their written
determination they really just need to
be
guided by an objective unbiased
perspective and be mindful of the
elements of the claim
and only rely upon relevant evidence in
making their determination
great um so so moving right along
to the uh the logistics um
and i think we'll we'll talk about
excluding evidence uh
excluding some uh facts and evidence a
little bit later but just in terms of
the general logistics of how to
distribute the determination so
the regulations require the schools to
provide the determination to the party
simultaneously
and the determination becomes final
either on the date in which the appeal
would no longer be considered timely
uh so in your in your notice you would
inform them according to your procedures
how long they had to file an appeal and
to the extent that they
do not exercise that option within the
amount of time
that the determination will be final or
if an appeal is filed the date on which
the school provides the party
with the written appeal determination
scott i'm this is aaron i'm
as if you wouldn't know uh who who do
you think
i'm in your past experience is really
responsible i'm curious if this is the
title ix coordinator that's issuing
obviously the adjudicators are are
authoring the determination
would you expect the coordinator to
actually distribute it to the parties
would you expect counsel for the
institution to assist with that process
practically speaking how in your
experience would you typically expect
that to play out
yeah and i think this could depend on on
your school's process
um but in my experience it would be the
the authors of
the determination so it would be from
the um
the chair the presiding officer of the
decision-making body or
a staff member that assists that
organization to actually send out the
determinations
um the coordinator role to to
i think to the best of their ability
would would kind of stay
above operational details and kind of
focus on making sure that the whole
process
is is compliant
and as i mentioned here so excluding
facts and evidence of just a few
quick questions and susan i'll uh pose
this one to you
um in a
hearing process so you mentioned before
uh
in the key concepts that privileged
information
is something that should not be saw but
there's other
uh aspects of um
of evidence that that could be uh
introduced
or inadvertently said or purposely said
that the decision maker hears but
is not able to to consider and really
should not have been
said so what happens realistically when
a decision maker
hears a party or witness inappropriately
discussed things like privileged
information
treatment records or irrelevant
information
and how would how would they go about
that decision
and this is something that happens with
some frequency in all
different types of forums and including
in a forum like this where
information comes out and you you are
either
told after the fact maybe by the advisor
that that information was privileged and
it's sort of the equivalent of them
objecting to that information
and you then as the decision maker are
called upon
to not take it into account even though
you've heard it
right so this is not an easy task
to unhear something or
forget something that you did here and
yet that's exactly what you need to do
you may not consider any information
that inadvertently
or inappropriately comes out or is um
provided without the person knowingly
um waiving that right it's not uncommon
that someone is
so embroiled in the testimony they're
providing that they forget
that that information was provided to
them by their attorney or discussed with
their physician or whatever else
so when that does occur the decision
maker may not consider that information
they should really as a best practice
consider
stating for the record that that
information was inappropriately
disclosed and will not be relied upon
and frankly if they cannot do that if
they
feel like it's just an impossibility for
them to not rely upon
inadvertently produced information they
should consider recusing themselves
because it really does
delegitimize the entire process at that
point
absolutely um another tough situation
uh for for adjudicators is is how to
hide away facts so a lot of time
will have been spent in these hearings
presenting information and then when it
finally comes down to
after the hearing's over uh determining
how to
how to apply it there's there's
different standards based on whether the
school has chosen
the preponderance of the evidence
standard or clear and convincing
and that affects how uh how the ultimate
decision
uh might be made so susan let me let me
turn to you what do we mean when we talk
about
preponderance and how should facts
be evaluated if the school has is using
a preponderance of the evidence standard
so under um the law a preponderance of
the evidence standard
means that the the um evidence is proof
that a particular fact or event
um more than likely occurred or
did not occur um so it's this sort of
amorphous
more likely than not it's different than
a
beyond a reasonable doubt standard which
means that there's no plausible reason
to believe otherwise
um but this is um more than likely to
have occurred or not to have occurred
which can be ripe for um
discussion and disagreements but that is
the standard by which we're guided
yeah absolutely and i'm sure it would be
um so let's turn to clear and convincing
um what's what does that mean and
uh if the school uses a clear and
convincing standard how would they
evaluate facts
so um by definition clear and convincing
standard is proof that a particular fact
or event
was highly and substantially more likely
to be true
than untrue which again learned scholars
and
legal professionals can disagree on this
same fact but
once again we need to be mindful of the
distinction between it
and um uh beyond a reasonable doubt so
this is a lower both clear and
convincing
and preponderance of the evidence or
lower standards
than beyond a reasonable doubt and so
in that respect i apologize aaron no not
at all
we should be questioning ourselves
whether we
believe that the fact is highly probable
to be true
and that's i think incumbent upon the
decision makers to
to keep checking themselves as they're
assessing the information
sorry about that susan i have a as my
wife will tell you i have a tendency to
interrupt people she
she can attest to that um what i was
actually going to say
is you know and and i know you guys know
just by way of example i'm sure there
are people listening this thinking
how am i supposed to understand these
two standards they to your point
uh susan sound amorphous and vague and
very difficult and um if folks are
feeling that way you're right to feel
that way they are
difficult to apply and they are they are
concepts of art not concepts of science
um i was involved in a rule making not
this rule making but a different
different us department of education
rule making two or three years ago
where these two standards were very much
at issues so we had 17 negotiators
around
a table in washington dc trying to
figure out which one of these standards
to use in the context of this
this rule that the department was
considering and
it was extraordinarily challenging and
we kept coming back to this idea that
nobody really understood what the
distinction was
i will say though the one thing that is
clear and i'll offer this up to those of
you who may be first-time adjudicators
or investigators right or anyone who's
in
part of this process and having to
grapple with these standards um
what is clear is that clear and
convincing is a higher standard
right so when you talk about
preponderance of the evidence
um you know how good you have to feel
about something to believe that it's
more likely than not well that's sort of
an internal
decision but what is absolutely
unquestionable is that clear and
convincing is intended to be
the higher standard so uh and it's it's
intended to require a
greater level of proof and you know
whether that's 65 percent versus 50 or
75 versus 50
is always subject to debate but if
you've got a preponderance of the
evidence standard then you know
you're you know you're sort of at that
which way is it tilting type place
and if you've got a clear and convincing
standard then you know it's got to be
more than just slightly tilting them one
way or another
right and that's that i have found in my
discussions with folks about these
standards and understanding them that
at least at least understanding them
relative to one another
can be helpful even if knowing exactly
where they each fall independently can
be a great challenge
yeah and and that's it those are great
points and i'll just add one more thing
um in my conversations with with board
members
uh questions come up but how can they
apply these standards without
legal training these are these are
technical standards and
do you need kind of a background or
rules of evidence to
to interpret this and the answer is no
so first
let's point out that these are standards
that juries use all the time and
juries are not made up of of legal
professionals
but but second presumably as a as an
adjudicator a decision maker you were
chosen
uh just based on your your your level of
intelligence
and expertise in your area and just
general common sense
uh good good approach to kind of um
going about your job and that that will
that will serve you extremely well in
making these determinations
and they are they are absolutely not
easy um but i think the
doing the work and kind of wrestling
with this
usually comes out to the right answer
so next uh talk about effective
deliberations
and uh the first slide is really a
another question for you susan um
the one of the the main
uh issues or or things for a decision
maker to grapple with
are issues of credibility and how do
they assess credibility how do they
weigh credibility um and and especially
in situations where it is it really is
only one
party the complainant and the other
party the respondent that have direct
knowledge of the facts
and the situ and the outcome may turn on
which one you find
more believable or not how do you go
about evaluating this and feeling
confident in your decision
yeah and i know i sound like a broken
record it's not easy um
and it is something that um
it's helpful to be guided by a couple of
of
um concepts as as delineated on this
slide
i think it's important for the decision
maker to be asking themselves
does this seem believable does this make
sense because ultimately
um we do have to just
kind of rely upon common sense in a lot
of these situations
so being guided by this plausibility
concept can be very
helpful and uh ultimately speak to the
credibility of the witnesses themselves
um i think it's important to look at the
person as they're testifying and
and the way in which they're conducting
themselves to see if
their demeanor is giving off any sort of
symbols you know
as aaron started this whole thing off
with
we're recording this during the copen 19
pandemic
and i have had to do some investigations
over zoom and you lose a certain level
of of that capability of being able to
really see if someone's
fidgeting or if someone seems to be
looking at
their advisor while they're testifying
for support and
guidance and hints so it's completely
appropriate for
the decision makers to be taking all of
that into account
when deliberating on
a decision and finally i think um
witness support and corroboration is is
while
not everything because we have already
discussed in one of the prior training
that
um the mere repetition of a story does
not automatically
make it true or relevant but certainly
witness
um statements and corroboration of
either the complainant or the
respondent's story
is important for the deliberator to take
into account
um in addition to to each of those um
i think it's important for us to
question did this person have a reason
to lie
that may seem obvious um especially for
a respondent but it's not always
so cut and dry that the respondent would
have a reason to lie
or that a particular witness would have
a reason to lie so be
be critical and conscientious of that
when going through the deliberations
um be cognizant also of any evidence or
testimony about
a history of similar behavior in the
past and this is something that's a
little bit different
in this process than in a piece of
litigation in
in a courtroom where some of that
evidence might not be admissible
here it might very well be and if you
have that kind of information
presuming that you go through the same
analysis of
um was that potentially a lie and was
that truly
vetted and determined but if you do have
that past record that should be
something you take into account
um assuming all things are true um
and in your current deliberations as
well now
i would say that um
none of the things that i just mentioned
on their own
are more important than the other these
are very factually intense
determinations
um and every piece of it needs to be
analyzed
as opposed to just one over the other
um so while you should be guided by
these principles you should also be
mindful of the overall picture
and uh the overall evidence that came in
yeah that's extremely helpful i'll just
clarify
um i think that susan you were right to
note the at least the
the past record uh piece uh may
may be um a little uh
depending on if that evidence is allowed
and as we explained in a different
module
here that the touchstone is if it's
relevant or not so
there's a chance that this evidence
might not be relevant and might not be
able to be heard but assuming it meets
the relevant standard then
absolutely agree with everything susan
said
a couple more pieces so i think
it's one thing to evaluate a person's
demeanor
it's another thing to evaluate expert
testimony
and medical records and things that
someone with with
advanced training and potentially
doing this kind of for a living for uh
for for legal matters
presents in in this hearing um
how does a a board member adjudicator
with no medical or expert
training evaluate these complex
documents and testimony
i think it's the job of the adjudicator
to become as much of an expert as
possible
throughout the process by asking any
question they have
or feel that they need answered in order
to really be able to
to understand the evidence being
presented
and offered by the expert it will not be
enough just
for the deliberation
group if there is a group or an
individual to
to just say well if the expert says it's
so it must be so
no they really need to push up their
sleeves and ask as many clarifying
questions as they need in order to
appropriately weigh that information
um we deal with this all the time in
civil litigation and
it's a a very important piece to ensure
that juries really understand the
information that's being presented
so um if that means that the decision
maker needs to
slow down the process ask the same
question over and over until they
understand it
ask for additional information
potentially whatever that need
decision maker needs in order to really
understand and evaluate the information
it's incumbent upon them to do so and
scott am i right
this rule um the department and the
preamble and maybe i'm
thinking in the regulatory text fairly
specifically anticipates
that that experts may be a part of this
new formal
uh complaint process i seem to recall
that in the preamble or again maybe in
the text of the regulation itself
yeah no i think you're absolutely right
on that um and that's and that's a
change from
uh from the way that schools have
previously conducted
um investigations um that experts are
are permitted uh and they aren't they're
allowed and
to the extent that the expert is
providing a statement
as we'll explain in the hearings uh
presentation
uh you have to have the expert actually
come in to be subject to
cross-examination
uh for the for the adjudicator to rely
on that assuming that's true
um absolutely is something to be
presented and
considered by the decision maker the
other thing to keep in mind is
an imbalance of resources potentially so
potentially one party has access and
ability to hire experts and medical
testimony and the other party does not
so decision makers may very well be
confronted with
a situation where one well-financed
party
is able to present a very sophisticated
almost legal case and the other party
is not and um and that is a challenge
for the decision maker to be presented
by a potentially
one-sided compelling case yeah and i
would just
dovetail off of that it's possible that
both sides will present their experts
and you'll have competing experts and
competing opinions to take into account
and then it's even more important um
that
the decision maker appreciates any
nuances between the differing opinions
and really digs into
um how two experts could reach different
opinions
in the same fact pattern absolutely and
as you mentioned susan this is this is a
frequent in in civil litigation and this
is something that
that lay people uh non-legally trained
people are
are expected to do um regularly in the
court setting and you might be asked to
do it as an adjudicator in the title and
setting
um so let's let's let's fast forward and
um let's assume that that all the facts
have been heard
and evidence has been evaluated and now
it's time to
to get to brass tacks and determine what
the final decision is ultimately going
to be
susan what do you what do you recommend
in terms of um
trying to assuming there's more than one
person that's a decision maker
trying to to kind of uh talk through
each person's analysis
and ultimately come to a consensus
decision that you could put into a
determination
yeah and and i think there is sort of a
need
to just um respect the fact that if it's
more than one person
chances are you are not automatically
going to have consensus
at the beginning and that we really need
to all be
intentional in um resisting the
temptation
to make a decision before having heard
all the facts
and before having um evaluated
all the facts so that might mean
pressing pause on the deliberations
um even pressing pause on closing
statements
and taking a step back looking at
any questions that you as the
adjudicator might have noted
throughout the course of of the um
hearing and make sure you've answered
all the or had
all those questions answered for you
before you get to the deliberation
process because once you're in the
deliberation process
you're not going to have that
opportunity anymore
but once you do get in that room with
your co-deliberators
it's really important that um everyone
be respectful and hear out
other people's opinions about that and
not immediately
um pounce on one of your co-deliberators
who just seemingly has not seen these
things the same way
talk it through be rooted in facts be
rooted in testimony be rooted in
documentation
and steer clear of opinions
or personal experiences
that being said you can still go back to
things like the person's demeanor
which is sort of inherently talking
about your opinion of those
behaviors or um
twitches or fidgets that you noticed in
the person and
i think so long as everyone is listening
with an ear towards
um really trying to remain polite
and uh get to the bottom line um
you might actually find that you are
informed yourself by those
observations that one of your
co-deliberators had well
great advice susan all great advice
absolutely
um and i think with that great advice
that that leads us to the last
um kind of section of this presentation
um so i think we're fast forwarding
again
and um you've taken all of susan's great
advice
and you've reached consensus on your
decision
um susan i'll pose this to you again um
how do you once once you have done all
the hard work
how do you put it into writing i think
um you should start by looking at the
policy
and make sure that you are adhering to
your institutions policy when you do so
whether that's um making sure that you
make note of the clearing convincing
standard versus preponderance of the
evidence whatever that
is make sure you you are
guided by that specific policy when
putting it together
i think it's also important that the
tone of the
determination reflects the gravity of
the situation
so if you've made a determination that
might be
adverse to even the complainant
a respect for the allegation itself
needs to be
made clear and made clear that we did
not come to this decision lightly
or conversely if it is in the
complainant's favor and there's going to
be discipline
to the respondent an appreciation that
this might
really impact the person's tenure at the
school
or educational um
survival at the school might ultimately
need to be
respected and called out in the uh
deliberation or excuse me the
determination itself
um and i think then that that tone will
carry through
um and make clear that the outcome
itself was was taken very seriously
and thoughtfully uh assessed before
just reaching uh the determination
that's contained in that
in that writing yeah absolutely
and then um kind of shifting
to uh to what happens after so i think
decision makers are keenly aware that
a lot of title ix disputes that go
through a university
process college process end up
potentially in court
or in front of the office for civil
rights at the department of ed
um in terms of with that kind of
knowledge what can a decision maker do
to kind of
make their determination as defensible
as as possible if ever reviewed or
challenged
by an agency or court yeah i think
that's a really great point because i
think everyone
who's in the position of having to draft
uh
determination needs to be mindful of the
fact that
chances are um other parties in the
future are gonna see this
and are they comfortable with their
final written product
um with that in mind it will most likely
be
exhibit one to any subsequent lawsuit so
be thinking in terms of how is my
writing how is my work product going to
present the institution in the best
light which is not to say
how do i draft it so that the
institution will not be found liable
it's in fact how am i going to um
represent the institution to show that
the institution took this very seriously
as evidenced
by the professional um written product
that we've put put out so i think in
that respect it's important to go back
to
some of those earlier slides about the
format and content
um steal directly from some of those
um key concepts be guided by the
written complaint or complaints be
guided by the language contained in the
investigative report
be guided by the elements whether that's
within a written policy
or the legal elements and allow that
to then form the basis of your written
determination
and when in doubt um reach out to legal
make sure that you are looping in your
legal counsel
so that the the written determination
really is
succinct and appropriate as it can
possibly be
so that if this is ever appealed or if
it goes up to
an administrative agency or civil
litigation
it shows in the final written product
yeah
and i'll just i'll just add one thing um
to that to that piece about legal
um your conversations with your counsel
are are privileged so you kind of you
might have some ability to ask
more questions or kind of uh seek advice
in a way
that that could be helpful to your
product um not
i'm not saying not to do this but just
be aware if you reach out to
other people that don't have that
privilege um
those conversations those emails could
potentially be discoverable in the event
of
civil litigation and and what you don't
want is to
to kind of take away the autonomy of the
decision makers
to to make their decisions so what i've
seen for example is
decision makers might send their
findings
for review by the supervisor or staff
member
just be careful that the staff member
does not edit or take away or adjust it
in a way that
that would undermine or potentially
devalue the work of the decision makers
it really needs to be rooted this is the
decision of the decision makers
here and you don't want kind of any
outside influence in that process so
don't not saying not to seek help but
just be aware that when you do you just
want to
you want to make sure that help is
compartmentalized in a way that that
doesn't
affect the overall um determination
scott i'll put a another finer point on
that or
or at a point anyway um and that is if
you're reaching out to council just
remember the role of council is to help
you
potentially to understand the
information that you're sifting through
to help you
understand uh uh how you might present
you know
that uh written document right i mean
council may have templates or thoughts
about how to make it succinct but i want
to be really clear
your legal counsel should not be
substituting their judgment
for your judgment you're the adjudicator
so to the extent you're reaching out to
them it
should not be for some sort of input
that would
impact your decision making not really
uh it should be for
uh potentially in crafting the document
or understanding how it should be
written or ensuring that the way you're
crafting and is compliant with the
policy etc
the other thing i just want to remind
you know scott mentioned this idea of
potentially providing
a draft to other persons within the
organization
certainly in in certain circumstances
that can be appropriate
um but also keep in mind your
confidentiality
obligations right and every time you
start to share your potential document
with others you're going to run into
and be attention with potentially some
of your obligations regarding
keeping things as confidential as
possible so i would just say
look hard at your policy make sure on
the confidentiality point that you're
consulting with council
because you don't want to share this
document with folks who shouldn't be
seeing it
any any more than is absolutely
necessary to get the job done
and also be mindful about the role
council plays with regard to helping you
craft and finalize the determination and
that your council isn't substituting
their judgment or you're not allowing
them to or asking them to
for your judgment because you are the
adjudicator
and with that actually i think that
brings us to resources so i'll go
through this very quickly
uh if you again have made it through to
the end of this presentation thank you
we're glad that
you did and we hope you found it
meaningful and we hope you'll check out
some of the other
uh modules in the series with regard to
resources every
one of these modules we point out that
the office of civil rights has a blog
that they've created and this is where
they have indicated that they're going
to provide guidance with regard
to this rule on a go-forward basis um
you can click on this if you have the
actual slides
available you can click on that and
there's a link and it'll take you to
that page or you can just google
office civil rights blog we also whoops
there we go
we also have provided a comparison
document some of you may be interested
in
available on the same web page where
we've provided the slides which shows
the changes that the new rule made to
the existing regulations
um i know some folks myself included
like to see that kind of view it really
gets you
helps you put a a a finer point to use
that phrase again
on what exactly was changed and then
i'll just offer we offer
every one of these modules we've noted
we have a higher ed webinar series it's
free it's on demand
one thing i haven't noted in every one
of these sessions but i will note here
is that these are all continuing legal
education
certified presentation so if you're an
attorney and you listen to the live
version
of this higher ed webinar series you may
be able to pick up cle
um i also will mention that we have a
blog regucation we're very happy for you
to check that out we talk about all
kinds of things lots of discussion about
the cares act of late
and occasionally we make available free
tools and resources and we
we'd be happy for you to get those you
can reach out to us and we can sign you
up and we'll send you one if we
have it available um if you're
interested there we go if you're
interested in the professional profiles
here at the end after we're done uh
there's an extended
profile for susan and scott myself and
then at the end
we have our disclaimer just reminding
you that we're not your attorneys
um thank you so much for tuning in we
hope again that you'll check out some of
the other sessions as well
and wherever you are during this
pandemic most
most of all we hope that you will be
safe and be well
thanks everybody
you