hi my name is aaron lacey i'm the chair
of the higher education practice at
thompson coburn llp
and you are listening to title ix
appeals the last
in our title ix training series
uh we are so pleased you're with us
today and um if you've been listening to
all the prior sessions this is six of
six congratulations because you've
gotten through
a lot of training we've got another good
discussion for you today i can also
promise you that it's gonna be
the shortest of the six so uh if you've
made it this far you're almost
uh to the end for those who don't know
thompson coburn is a law firm
uh headquartered in the midwest we're
pretty big we've got offices around the
country
and we have a higher education practice
and the folks you see on your screen
right now these are
lawyers who either work with higher
education some of the time or in many
cases
all of the time i myself spend a hundred
percent of my day working with colleges
and universities on a range of matters
and the practice
uh broadly many of these folks work on
uh
allegations or issues involving
discrimination uh on the basis of sex or
race or disability
or some other protected class uh the
purpose of this training series
is to assist institutions in complying
with the new title ix rule that becomes
effective august 14 2020
pursuant to that rule institutions of
higher education
are supposed to provide training for all
the individuals who will be
participating in
uh and i mean the internal at the
institution individuals who will be
participating in and helping to
administer the new
formal complaint process so we're
talking about investigators
and adjudicators and potentially appeal
officers and advisors
and others not only are you required to
train those folks but you're also
required to post that training
to your external website that you use
all of your training materials so we
understand
given the pandemic in particular right
now that it is hard to identify or may
be hard to identify resources
and deploy those and make them available
to these various individuals and that's
why we created this series
uh to be clear we are very happy for you
to post it to your external website or
to use it at your discretion
uh now and in the future and if you
would like custom training this is
foundational training there's a lot to
it so we do have six sessions and we go
through a lot but if you'd like custom
training on your policies
or if you'd like to do some sort of
hearing simulation or investigation
simulation things along those lines
give us a call because we uh we help
institutions with those
types of trainings as well i mentioned
earlier
this is our training series layout it
consists of six modules in its entirety
and you are watching the final module on
appeals
um the session today will have
uh just a few parts this is our syllabus
you see this in every one of our
sessions and we've got
i guess it's five different uh uh topics
to hit on the syllabus
i'll go through the first one the formal
complaint framework fairly quickly i do
that at the beginning of every session
just uh to get people as i like to say
sort of get your mind rights you
remember where we are and things
and then our two presenters we have
judge shawbak and
scott goldschmidt as well and they'll be
working through
these various topics i mentioned judge
shaw he was in our prior session
on hearings as a trial judge in the
state of missouri he oversaw
literally hundreds of hearings and he
also sat for
uh several years on the missouri court
of appeals so this gentleman is
a professional adjudicator in every
sense and if you went through the
hearing if you haven't heard the hearing
session i hope you'll go back and listen
to it because it's really good
and he brought that sort of experience
and perspective of a career adjudicator
if you are someone tasked
with uh managing title ix hearings or
appeals
these will be sessions you want to
listen into so we have the honorable
judge shawn we have the estimable
uh scott goldschmidt former deputy
general counsel catholic university's
been present
in all of our sessions scott thank you
so much for being back today
uh to you and judd shaw and for walking
us through
the appeals process um right before you
do that though before i hand it over to
scott just a reminder
the new rules so we talk about title ix
the statute which uh broadly prohibits
discrimination on the basis of sex at
institutions of higher education
and any time an institution gets a
complaint or an allegation of
discrimination on the basis of sex
they've got to have a process for
working through that but keep in mind
that could be
any type of allegation not just sexual
harassment so you could be dealing with
claims that there was discrimination in
the context of housing or admissions
or counseling anything along those lines
athletics an institution would have a
process in place and need to respond
the new rule is really focused on what
institutions should do if they get a
complaint
of what we're calling title ix sexual
harassment in the very first of our
session scott went through this
definition
under the new law of sexual harassment
and if you get an allegation of sexual
harassment that
satisfies that definition then there are
obligations uh under the new rule
even more specifically if you get a
formal complaint of title ix sexual
harassment
and that's the orange box here that's
the the the core
of our concern uh if you get a formal
complaint that there's a lot then there
is a lot you have to do
and that's really what this new training
series is focused on and and it's what
the new
rule is focused on we've got the
definition of formal complaint here
we're talking about a
a written complaint that you receive
either from the complaint or title ix
coordinator
that that alleges sexual harassment and
is seeking an investigation so it's got
to be in writing it needs to be signed
it could be electronic or hard copy but
but either way it's got to be in writing
if you get that formal complaint though
then you have to initiate
your formal complaint process and that's
where all this machinery sort of comes
into place
and that's again what the new rule is
primarily focused on and you can see our
series these are all the different
elements
of the formal complaint process that are
laid out in the new rule
and our series training series is
largely focused on walking through these
elements and as i noted before you're
almost at the very end we did record
keeping in the first session we tied it
in so
uh in a sense appeals is actually the
end of the line here
uh at least for our training so with all
of that having been said i'm delighted
to turn it over uh
to mr scott goldschmidt
thanks aaron uh and i think let's just
dive into a few key concepts
uh with appeals um so first we'll just
kind of go over
uh the general overviews uh requirements
of the
regulations and then we'll um we'll turn
to judge shaw for some of his uh his
opinion and
and uh uh experience based on
actually doing a lot of these um so
first so key concepts uh for the appeals
so schools
must offer both parties and appeal um
for one the determination regarding
responsibility
so if you get to a formal hearing and
adjudication
and there is a determination on
responsibility that is one time an
appeal must be offered
uh the second time an appeal must be
offered is regarding the school's
dismissal of a formal complaint or any
allegations herein
now we've discussed this in more detail
in the formal
complaint module but remember there are
uh
points before a formal adjudication
where the school either may or must
dismiss a formal complaint
and this is another point where uh
an individual has uh the school has to
afford an option to appeal
um schools have to implement their
appeal procedures equally for both
parties
uh we're gonna go over the basics of
what the the rule requires the the floor
but
to the extent that there are any
additional requirements or
um or inputs in their in procedures they
have to be applied equally
schools must notify the other party in
writing when an appeal is filed
and schools must ensure that the appeal
officers not the hearing coordinator
investigator i'm sorry not the
adjudicator the investigator or title ix
coordinator and we'll go into a little
more detail
about maybe people that might be good
serving as appeal officers
in addition schools must ensure the
appeal officers
received required training will explain
uh
what that required training is according
to the regulation
schools institutions must give both
parties reasonable
equal opportunities to submit a written
statement in support of
or challenging the outcome and then that
will discuss
schools have to issue a written decision
describing the result so after the
appeal officer
uh hears the reads the appeals and both
parties have had a chance to
to state their case uh it needs to be a
written decision describing the results
and the the decision of the appeal
officer
and that decision needs to be provided
simultaneously to both parties
so let's turn to what what can you
appeal on
um so the statute sorry excuse me the
regulations
have three applicable bases for appeal
so the first that the schools must
must include is a procedural
irregularity that affected the outcome
the second is new evidence that was not
reasonably available at the time the
determination or dismissal was made
and could affect the outcome and third
the title ix coordinator or investigator
or adjudicator
had a conflict of interest or bias that
affected the outcome
so what's important to note here is
these are
fairly specific bases for appeal
the department's not saying that if one
party is dissatisfied with the outcome
or they they just generally think that
something could have gone better their
way they could appeal that
the the actual appeal needs to be based
on one of these three narrow specific
outcomes
that being said the department also
makes clear that a school
can offer other appeal grounds equally
to both parties so
by uh by their process they can say i've
i have appeal rights four five and six
and i'm going to make them
available equally to both parties but
even if the school decides to add
additional
bases of appeal it doesn't mean that the
that there's a general right to appeal
you have to be really kind of focused
and based on these specific grounds and
the appeal
that the complainant and respondent
submits
needs to explain um why one of these uh
bases is affected
um so judge shaw let me let me kick it
to you for
for our first question here um
so we just went over the three mandatory
bases of appeal and the regulations
um i didn't see anything about severity
or proportionality
um of a sanction is that an appropriate
basis for appeal under these rules
well it could be if the um
recipient decides to make it a basis for
an appeal
maybe only there the three you pointed
out are the only ones
that are mandatory but
i would suggest that the severity or
proportionality of sanctions may be an
appropriate
basis but of course the recipient has to
state that it is and offer it
to both parties
makes sense um and then what about
the party just requesting an appeal
because of of general
dissatisfaction with the result
well somebody's going to be dissatisfied
no matter what the result is
so no you can't appeal just because
you're dissatisfied
it must meet one of the three criteria
you just talked about scott
or any additional ones the recipient
chooses to implement
and if a hearing officer received an
appeal
uh based on just general dissatisfaction
um how would they how would they adjust
that i'm sure you've uh as in your in
your previous career have had plenty of
those
how would you address something where an
individual made an appeal
based on a ground that was not specified
as permitted by your regulations
that's what would the court would say to
us
is that uh the appeal is denied because
it was
not based upon the ground specified and
permitted
so so what about this uh is
you're not satisfied with the appeal
officer's um decision
uh who do you appeal that to
you well you have the right to file a
lawsuit
but your appeal process is done
and you know i think you know
i guess uh circling back just a little
bit i think
people often feel uh laypeople often
feel that an appeal is a do-over
it's not a do-over i mean there are
certain limited
basis upon which you can appeal and
appeals are not unlimited uh you know
the process
you've often heard justice delayed is
justice denied
i mean the process must come to an end
must come to a conclusion
for the sake of all parties concerned
and so there is one appeal and if
uh a party is dissatisfied with that
appeal then they can follow
us all right let's move on to to talk
about drafting appeal decisions so
so we talked in the previous couple
slides about what
applicable bases and what happens when
someone files a
appeal that maybe doesn't meet one of
those bases but but now let's talk about
when someone files a proper appeal
uh it meets one of the bases in your
procedure
uh and you have you have it in front of
you and you kind of have to to go about
evaluating the facts and the decisions
um judge
what are some things that appeal
officers can can consider
as their reviewing appeals and
ultimately drafting those decisions
well as as you've indicated
it has to be based appeal has to be
based upon one of the applicable grounds
and and once that determination is made
that is the appeal is
made on an appropriate procedural ground
then what are the allegations there
and of course the uh the appeal officer
must have an open mind about it and not
you know give any particular
weight to one side or the other and
objectively make a determination as to
whether or not
those grounds were repealed have been
established now the one thing of course
that i think
the appeal officer is going to have to
give deference on and that
is on matters of credibility because
the appeal officer will not be
considering the witnesses again
the appeal officer if it is if the
if the hearing officer makes a
determination that one witness was more
credible and believable than
another witness or that the witnesses
were equally
credible on certain points then there's
no way
that the appeals
officer can find differently because
the appeal officer will not have a duel
they won't hear the witness
they will just look at these bases that
have been offered to them but otherwise
i don't think that there should be any
particular deference one way or another
about the validity of the
finding by the hearing officer and that
the
appeal should be considered with an open
mind and objectively
so kind of going off of that what what
facts
what uh documents would you expect a
hearing officer to have in front of them
and and what would you if you were
hearing officer what would you want to
to have in order to make your uh your
review and your decision
a hearing officer should have each and
everything i mean the appeals officer
that the hearing officer had uh
transcript
documents statements
anything that was considered by the
hearing officer as well as any evidence
or documents that may have been rejected
in case there was some procedural
irregularity with regard to
a relevant determination so
they would have to consider the whole
record to appropriately consider the
appeal
judge let me let me move back a little
bit we talked about the appeal bases
uh and and the three bases by the
department were
procedural regularities new evidence not
available
and conflict of interest or bias and
each
caveat is is at the end of each
individual point it's
it's that they have to have affected the
outcome of the proceeding
um what does that mean to you in terms
of
uh if you if you got an appeal uh based
on one of these factors that it affected
the outcome
well let's say now of course it has to
be
determined on a case-by-case basis and
according to the facts uh and evidence
that was presented in each case but
if this procedural irregularity
or new evidence
had been cured at the time of the
hearing if this evidence for instance
that had been excluded would have been
allowed in
if this uh new evidence that was not
reasonably available
was available to the hearing officer was
that evidence of such weight and of
significance materiality and relevance
that it would have changed the outcome
or might have changed the outcome
one of the things that i think the uh
the hearing officer and of course the
appeal
officer considered
is whether there was an appearance of
impropriety
and whether um
reasonable minds would conclude that
this evidence whether excluded evidence
or newly discovered evidence might have
affected the outcome
the harder call can sometimes be uh
whether or not there was a conflict of
interest or bias
and i think that that is why the hearing
officer has to be very careful
about is there even an appearance that a
social relationship
or a professional relationship might
have affected
um either the hearing officer or an
investigator
in the case and of course those things
should have been cured
at the hearing because you may find
yourself
if there is even the appearance that
there is a possibility
that a conflict of interest of bias
could have affected the outcome
you may have a problem with the
perception that this was not a fair him
and the appeals officer may be in a
position to say well you know i don't
know
it's it's hard to read minds i don't
know if this might have affected the
outcome now if the
relationship is so attenuated so distant
and such that one can very reasonably
say okay
this could not possibly have made any
difference
in a closer call i think the appeal
officer may be forced to
or you know offer a new hearing under
those circumstances
and send it back so but otherwise i
think it just has to be on a
case-by-case basis
and the appeals officer has to look at
that evidence and
make an objective determination as to
whether or not they think it may have
affected the outcome one way or the
other
just to button up this point um if if
the appeal officer
thinks it it would not have affected the
outcome if they reasonably kind of say
maybe there was a procedural
irregularity
but it wouldn't affect the outcome how
would an officer
decide in that case if if it would not
have affected the outcome then it cannot
be the basis for
overturning the findings at the hearing
okay
thank you i just wanted to button that
up for for my understanding
um so so let's talk about uh you
mentioned before
there's no appeal to the appeal but you
could you could file
a complaint with the office of civil
rights or you could file a lawsuit
so i think all appeal officers have in
the back of their head this is a this is
a possibility
um what about so i i
in drafting in appeal what can an appeal
officer do
to to make it as um
defensible as possible in case it is
ever reviewed by
an administrative agency or a court
overtime
yes well you know it's much like uh the
court of appeals does i mean you have to
address each
of the points on appeal and
it is the claims raised on appeal and
say
why they either did or did not
necessitate a new hearing or
require that the findings at the hearing
be affirmed
and the more succinct the better
perfect thank you judge um
with that i think that takes us to uh
some potential requirements or um
or uh characteristics of of good appeal
officers
uh so i think this is uh not an easy job
along with being an adjudicator
a pill officer is not an easy job so
what in your experience what would be
some some good characteristics some
things to look for
when an institution's deciding who they
should make their
appeal officer well i think as
we have discussed before that the appeal
officer should be someone who has
i think no conflict no bias
and be of such a stature within the
institution
that they lend a certain gravitas
to to the decision that they've made in
the case
i think it would be someone who has a
reputation for being objective
and thorough a detail-oriented person
understanding the process and not afraid
or concerned about any repercussions
based upon whatever their decision may
be
do you do you think institutions need to
look for a lawyer or someone with legal
training to
to do this kind of uh analysis
i don't think they should exclude
lawyers but i don't think that it's
necessary to have lawyers
okay very helpful
um and so yeah so institutions i think
uh i think as judge shaw explained
um potentially i don't think you might
want your your president or
your ceo to be to be hearing these
appeals
but uh maybe someone at the step below a
vice presidential level
uh at the institution or someone kind of
in charge of the process
could be a good potential officer to
here scott i'll
i'll actually go a step further and say
uh you definitely do not want your
president
uh or or ceo or
general counsel hearing these appeals
you definitely want someone who is
um not the foremost representative or
legal counsel to the institution
fair enough fair enough uh
um but uh but then i think that that
brings us to the the requirements for
for an appeal officer um so i think
judge shaw gave us a great outline of
what would be uh expected in an ideal
appeal officer but
in terms of the regulations um they
explained that appeal officers must
receive
training on on the following so the
definition of sexual harassment
under the statute the scope of the
institution's program or activity and
and that as
you may remember from a previous module
as a defined term about
where uh the institution has authority
to hear title ix hearings
how to how to conduct an investigation
in grievance process
uh so including hearings appeals
informal resolutions is applicable
how to serve impartially uh including
avoiding
pre-judgment of the facts at issue
conflict of interest and bias
and specific to your institution along
with the
scope any technology used at the live
hearing
um and on questions of relevance and
evidence
um including questions and evidence
about a complaint in sexual
predisposition
or prior sexual behavior and explaining
that those are not relevant
um so do child let me throw this to you
uh you mentioned
that it's important that field officers
do not have
conflicts of interest or bias before um
but what happens if
if an appeal officer does in a certain
case or
you suspect they do then uh
that appeal officer should be
disqualified
um and and as i said before
no for the viability of the process
it's essential that there not even be
the appearance of impropriety in these
proceedings
and so much as as we do in courts here
we avoid even the appearance of
impropriety you know sometimes it's said
and a judge might say or
in this instance appeal officer or a
hearing officer might say
well i don't have any bias or you know
conflict i can set that aside kind of
thing
but it is an objective determination you
know
is there a reason to believe that this
relationship for this
uh situation is one in which parties
may believe that there is a conflict or
a bias there
and so to avoid even the appearance of
an impropriety
it's best to avoid someone who has a
potential conflict or bias
and i think for that reason institutions
should
should make sure that they just don't
have one person uh
that could be the only appeal officer or
a system to to designate that that
appeal officer for
or in case they are unavailable
in case they have a conflict or in case
the the complaint is about the appeal
officer you don't want to have a policy
mandating that person has to hear
the appeal of a case that might involve
them yes for sure
um and i think with that aaron i'll flip
it back to you for discussion of
resources
thank you scott uh and thank you to both
you and judge shaw for another
tremendous conversation today
uh so we'll walk through our resources
one last time uh
first of all i just want to remind
everybody that the office of civil
rights has their blog which is
uh where they have said they're going to
post guidance and interpretation on a go
forward basis relating to this new rule
uh so if you're counsel or coordinator
you'll definitely want to have the
office of civil rights blog in your
browser we have a comparison document
that we created which shows the changes
the new rule made
to the existing regulatory framework it
should be located where you can find the
slides for these presentations hopefully
near the videos
if you can't find it just give me an
email or otherwise a holler and i'll get
it to you
but if you're like me it's very helpful
to see the exact changes that were made
to the regulation
um we have a higher education webinar
series we've been delighted for you to
join
us the webinars are all free and uh you
can also get them on demand after the
fact again free
if you weren't able to catch them
they're usually offered from august to
may we sort of track the academic year
we
cover a range of topics uh and again
would be delighted for you to check them
out we also have
a higher education blog where we write
about a wide range of policy and
regulatory issues that impact higher
education
regulation is what we call that we've
been writing a lot about the cares act
recently but we
uh cover topics of discrimination like
title ix
also on a pretty regular basis um oh
let's see and sometimes we have free
tools that we make available and we
encourage you if you want to sign up for
those we can get
you can get our alerts uh here's an
example we did a bar defense reporting
guide so
uh folks under another rule that became
effective july 1 of 2020
uh institutions have to report certain
information to the department of ed and
we put together a little guide to help
them out with that kind of thing once
again
all free and available just let us know
if you'd like to sign up for these kinds
of things or
otherwise have these resources sent sent
to your inbox
finally uh if you'll wait a few moments
after this
you'll see uh extended bios for judge
shaw and scott and myself and at the end
our legal disclaimer that just reminds
you that we are not
your attorneys hey this is the last
session of the six if you made it
through all six congratulations that's a
lot of
training a lot of complex ideas to wrap
the brain around
we hope you found it informative and we
actually certainly enjoyed
bringing it to you um and then one last
thing at the end of every session i say
this and i
couldn't be any more sincere you know
i've mentioned several times we're doing
this amidst the pandemic we know all of
you out there
at institutions of higher education if
it's still the middle of 2020 when
you're watching this
are also operating amidst the pandemic
um
and frankly even if it's after the
pandemic and and things have all
hopefully gotten back to at least a new
normal uh regardless
we always want to wish you and hope for
you that you will be safe
and be well thanks everybody
you