What Is A “Live Hearing” In A Title IX Case?
Live Hearing: A New Key Process in Title IX Formal Investigations
For decades, federally funded schools, colleges, and universities have been handling on-campus sexual harassment cases under the guidance of Title IX, the law that protects students and school employees against sex-based discrimination and sexual misconduct. Recently, Title IX has been expanded with new regulations that further regulate and define how schools carry-out investigations into those matters. A new key process referred to as ‘ Live Hearing‘ will be at the center of every Title IX formal investigation.
What are the stages of a Title IX formal investigation?
- Gathering of Evidence
- Live Hearing and Cross-Examination
1: Gathering of Evidence
Under the new regulations, the responsibility of gathering evidence for both parties in a Title IX case falls on the school, not on the parties. The investigation process may involve separate interviews with the complainant, respondent, and witnesses to collect their statements. Data such as medical records, police reports, and social media posts may also be collected as evidence. The school must ensure that during this initial stage of the formal investigation process, both parties have equal opportunity to present facts and witnesses. Once all the evidence has been gathered, the investigation enters the live hearing phase.
2: Live Hearing and Cross-Examination
Title IX live hearings can be held at a venue where all parties and witnesses are present, along with their advisors and the ‘decision-maker’ (i.e. the “judge”). But it can also be held through video conferencing.
In a Title IX live hearing, complainants and respondents are to be represented by advisors. The parties can choose an advisor to represent them or the school can provide one for them. An advisor can be a member of the faculty, a counselor, or a trained Title IX coordinator. Though it’s not required, a lawyer may represent a party as an advisor. Only advisors are allowed to ask questions during the hearing, not the parties themselves.
When the hearing begins, advisors will take turns asking questions to the parties and the witnesses. These questions will be pre-screened by the decision-maker to ensure that only relevant questions are asked.
During cross-examination, advisors may ask follow-up questions, including those that challenge the credibility of the other party. A party or witness may choose not to answer a question, but under the rules, the decision-maker would have to disregard all other statements given by that party or witness. The rules state that the decision-maker must not make an inference on a party’s culpability or credibility solely based on their refusal to answer questions. To put it another way, refusal to answer during cross-examination must not be taken against that party.
After the live hearing, the decision-maker must assess whether or not the evidence presented during the hearing has met the standard of proof chosen by the school. Under the new Title IX regulations, schools can choose one of two standards of evidence.
- Preponderance of Evidence – The evidence must support a finding that the complainant’s allegations are more likely than not true.
- Clear and Convincing Evidence – The evidence must show that the complainant’s allegations are substantially more probable to be true.
Once it has been determined whether the respondent is culpable or not, the decision-maker will notify in writing both parties of the outcome and what disciplinary actions, if any, will be taken.
The new regulations provide several bases on which an appeal from the outcome may be filed by a party, including:
- Irregularity in the procedure which affected the outcome of the case
- Discovery of new evidence which could affect the outcome of the case
- Bias or conflict of interest involving Title IX personnel, which affected the outcome of the case
If you are looking for advice on a Title IX issue, call to get a free consultation with the attorneys at Roberts Law Group. We have years of experience defending students (and professors) in Title IX matters across North Carolina.
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