Title IX Administrator Resources

"Actual knowledge" means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. ‘‘Notice’’ as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in §106.8(a).

Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

In the Preamble to the Final Rules, the Department of Education states that “complainant” is a term that communicates both institutional neutrality (that a person’s making of a report does not imply responsibility) and flexibility in who can report sexual harassment. 

in § 106.30 states that, at the time of filing a formal complaint, a complainant “must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed.”

Complaints brought by Title IX Coordinators

The Preamble also explains that, where the Title IX coordinator files the complaint, the reported “victim” remains the “complainant” and must be treated as a party, including receiving all required communications and opportunities to participate in the investigation and adjudication.  85 Fed Reg. at 30122 n. 547. 

Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. 

In the Preamble to the Final Rule, the Department notes that the rule does not restrict “a respondent to being a person enrolled or employed by the recipient or who has any other affiliation or connection with the recipient” but that an institution “may in its discretion” dismiss a formal complaint if the respondent is “no longer enrolled or employed” by the institution, in recognition that a institution’s “general obligation to provide a complainant with a prompt, non-deliberately indifferent response might not include completing a grievance process in a situation where the recipient lacks any disciplinary authority over the respondent.” 85 Fed. Reg. at 30198.

In the Preamble to the Final Rule, the Department also clarifies that a respondent is an “individual,” and that it does not contemplate that the designated Title IX process under 106.45 be applied to organizations. 85 Fed. Reg. at 30096. 

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator under §106.8(a), and by any additional method designated by the recipient.

As used in this paragraph, the phrase ‘‘document filed by a complainant’’ means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party under this part or under §106.45, and must comply with the requirements of this part, including §106.45(b)(1)(iii). 

Supportive measures means non- disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include:

• counseling

• extensions of deadlines or other course-related adjustments

• modifications of work or class schedules

• campus escort services

• mutual restrictions on contact between the parties

• changes in work or housing locations

• leaves of absence

• increased security and monitoring of certain areas of the campus, and other similar measures.

The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. 

The final regulations " will not require recipients to adopt a particular definition of consent with respect to sexual assault, as referenced in" § 106.30. 

Consent

Knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity.  Each party has the responsibility to make certain that the other has consented before engaging in the activity.  For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. 

A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs.  An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in non-consensual conduct. 

Intoxication is not a defense against allegations that an individual has engaged in non-consensual sexual conduct (POL-U1600.04).

Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: 

1. Quid pro quo. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;

2. Hostile environment. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or 

3. ‘‘Sexual assault’’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘‘dating violence’’ as defined in 34 U.S.C. 12291(a)(10), ‘‘domestic violence’’ as defined in 34 U.S.C. 12291(a)(8), or ‘‘stalking’’ as defined in 34 U.S.C. 12291(a)(30). 

Sexual Assault means an offense classified as a forcible or non-forcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.” 20 U.S.C. 1092(f)(6)(A)(v)

Sexual assault includes the following:

• Nonconsensual sexual intercourse

• nonconsensual sexual contact

• Incest

• Statutory rape

Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact. 

Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner. 

Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen (18).

Consensual sexual intercourse between someone who is eighteen (18) years of age or older and someone who is under the age of sixteen (16). 

Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Washington, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of Washington, RCW 26.50.010. 

Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors: 

1. The length of the relationship; 

2. The type of relationship; and 

3. The frequency of interaction between the persons involved in the relationship. 

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.

Title IX states,

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 

20 U.S.C. § 1681(a)

A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances § 106.44(a). 

For the purposes of this section, §106.30, and 106.45, ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a post-secondary institution. 

Under this new definition “a recipient’s Title IX obligations extend to incidents of sexual harassment  that occur off campus if any of three conditions are met:

• the off-campus incident occurs as part of the recipient’s ‘operations’ pursuant to 20 U.S.C. 1687 and 34 CFR 106.2(h)

• the recipient exercised substantial control over the respondent and the context of alleged sexual harassment that occurred off campus pursuant to § 106.44(a); or

• the incident of sexual harassment occurs at an off-campus building owned or controlled by a student organization officially recognized by a post-secondary institution pursuant to § 106.44(a).”

Programs and Activities in a Remote Environment

The Department states, “the statutory and regulatory definitions of ‘program or activity’ encompass ‘all of the operations of’ such recipients, and such ‘operations’ may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, recipient.”  Regarding whether an institution can exercise “substantial control” over a student in the context of while the student is studying remotely, the Department said only that “a student using a personal device to perpetrate online sexual harassment during class time may constitute a circumstance over which the recipient exercises substantial control,” but did not further elaborate. Id. at 30202. Id. at 30202.

The multi-pronged definition of education program or activity does not apply beyond the United States, including with respect to study abroad programs: the Department’s position in the Final Rule is that “regardless of whether a study abroad program is part of a recipient’s education program or activity, Title IX does not have extraterritorial application.” Id. at 30206. 

Recipients are, however, free to develop their own conduct proceedings for conduct occurring beyond the limited scope of  Title IX in the Final Rule. “[N]othing in these final regulations precludes action under another provision of the recipient’s code of conduct that these final regulations do not address. For example, a recipient may choose to address conduct outside of or not in its ‘education program or activity,’ even though Title IX does not require a recipient to do so.  Id. at 30091. 

A recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX. § 106.45(a).

Supportive Measures

 A recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in §106.30 to a complainant, and by following a grievance process that complies with §106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in §106.30, against a respondent , and by following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in §106.30, against a respondent.

Remedies must be designed to restore or preserve equal access to the recipient’s education program or activity. Such remedies may include the same individualized services described in §106.30 as ‘‘supportive measures’’; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent;  § 106.45(b)(i).

Neutrality

Title IX Administrators must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment in §106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance 
process resolution, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.

Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties who are known:

• Notice of the recipient’s grievance process that complies with this section, including any informal resolution process. 

• Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in §106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview.

Sufficient details include:

• the identities of the parties involved in the incident, if known,

• the conduct allegedly constituting sexual harassment under §106.30,

• the date and location of the alleged incident, if known. 

The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.

The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section. 

The written notice must inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

New Allegations

If, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional allegations to the parties whose identities are known §106.45(2).

In §106.45(b)(5) "When investigating a formal complaint and throughout the grievance process, a recipient must—

• (i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section. 

• (ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence; 

• (iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;

• (iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; 

• (v) Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;"

From §106.45(b)(5)(vi):

When investigating a formal complaint, the final regulations specify the obligation to " Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.

Prior to completion of the investigative report, the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and

(vii) Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing  or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response" §106.45(b)(5).

While the final regulations do not use the term ‘‘trauma-informed,’’ nothing in the final regulations precludes a recipient from applying trauma-informed techniques, practices, or approaches so long as such practices are consistent with the requirements of §106.45(b)(1)(iii) and other requirements in §106.45. Id 30187.

"Under these final regulations, recipients have discretion to include trauma-informed approaches in the training provided to Title IX Coordinators, investigators, decision- makers, and persons who facilitate informal resolutions so long as the training complies with the requirements of §106.45(b)(1)(iii) and other requirements in §106.45, and nothing in the final regulations impedes a recipient’s ability to disseminate educational information about trauma to students and employees. As attorneys and consultants with expertise in Title IX grievance proceedings have noted, trauma-informed practices can be implemented as part of an impartial, unbiased system that does not rely on sex stereotypes, but doing so requires taking care not to permit general information about the neurobiology of trauma to lead Title IX personnel to apply generalizations to allegations in specific cases.

Because cross-examination occurs only after the recipient has conducted a thorough investigation, trauma-informed questioning can occur by a recipient’s investigator giving the parties opportunity to make statements under trauma-informed approaches prior to being cross-examined by the opposing party’s advisor". Id. 30323

"With respect to cross-examination, the Department notes that the final regulations do not prevent a recipient from granting breaks during a live hearing to permit a party to recover from a panic attack or flashback, nor do the final regulations require answers to cross-examinations to be in linear or sequential formats.

The final regulations do not require that any party, including a complainant, must recall details with certain levels of specificity; rather, a party’s answers to cross-examination questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions. Because decision-makers must be trained to serve impartially without prejudging the facts at issue, the final regulations protect against a party being unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory. We have also revised §106.45(b)(6)(i) in a manner that builds in a ‘‘pause’’ to the cross-examination process; before a party or witness answers a cross- examination question, the decision- maker must determine if the question is relevant. This helps ensure that content of cross-examination remains focused only on relevant questions and that the pace of cross-examination does not place undue pressure on a party or witness to answer immediately. 

The Department reiterates that recipients retain the discretion to control the live hearing environment to ensure that no party is ‘‘yelled’’ at or asked questions in an abusive or intimidating manner. 

The Department agrees that cross-examination is likely an uncomfortable experience for most people, including complainants and respondents; numerous commenters have informed the Department that navigating a grievance process as a complainant or as a respondent has caused individuals to feel stressed, have difficulty focusing on academic performance, and feel anxious and depressed. The final regulations offer both parties protection against feeling forced to participate in a grievance process and equal procedural protections when an individual does participate. To that end, the final regulations require recipients to offer complainants supportive measures regardless of whether a formal complaint is filed (and encourage supportive measures for respondents as well),and where a party does participate in a grievance process the party has the right to an advisor of choice. Additionally, the final regulations add §106.71 prohibiting retaliation and specifically protecting an individual’s right to participate or not participate in a grievance process." Id. 30324.

Final Rule §106.45(b)(6)(i) requires that post-secondary institution’s grievance processes provide for a live hearing.

Decision-maker

The live hearing must be overseen by a decision-maker who:

1.  Is not the Title IX coordinator or the investigator;
2.  is free from conflict of interest or bias, including bias for or against complainants or respondents; and,
3.  who has been trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.   

Role of the Decision-maker

After a question is asked of a complainant, respondent, or witness, the decision-maker must determine, before any answer is provided, whether the question is relevant. See 34 C.F.R. §106.45(b)(6)(i). The decision-maker must explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant. Id. 

Advisor of Choice

[The University must] (iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; §106.45(b)(5)(iv)

Complainant and Respondent

While the Final Regulations provide that neither party may choose to “waive” the right to a live hearing ( 85 Fed. Reg. 30361), they also “protect every individual’s right to choose whether to participate” in the hearing or answer cross-examination questions. Id. at 30322. 

Witnesses

Like parties, witnesses are not required to participate in the live hearing process, but without their live testimony the decision-maker cannot rely on their statements. See 34 C.F.R. §106.45(b)(6)(i). Further, the Department is clear that “[n]o person should coerce or intimidate any witness into participating in a Title IX proceeding, and § 106.71(a) protects every individual’s right not to participate free from retaliation.” 85 Fed. Reg. 30360. 

The Final Regulations indicate that a party’s statements to another witness may not be relied upon when the party chooses not to attend the live hearing or refuses to submit to cross-examination. The Department explains that even if a witness appears and recounts the statements of the party, “it would be unfair and potentially lead to an erroneous outcome to rely on statements untested via cross-examination.” Id. at 30347.   

Effect of Failing to Submit to Cross-Examination  

The hallmark of the required live hearing is an opportunity for each party’s advisor to conduct live cross-examination of the other party (or parties) and witnesses. As described above, the refusal by a party or a witness to show up to a live hearing and “submit” to cross-examination can have significant effects on the investigation process (and outcome), including by limiting the statements of the non-appearing party on which the decision-maker may rely in making a determination (this includes statements made to other witnesses). See 34 C.F.R. §106.45(b)(6)(i).  

Effect of Failing to Respond to Question by Party’s Advisor

The Department states that to “submit to cross-examination” means answering those “cross-examination questions that are relevant,” as determined by the decision-maker “in real time during the hearing.” 85 Fed. Reg. 30349. If a party or witness is present at the live hearing, but disagrees with a relevance determination, they may have the choice of either

1. abiding by the decision-maker’s determination and answering or

2. refusing to answer the question. Id.

However, unless the decision-maker reconsiders the relevance determination, the decision-maker cannot rely on any statement on which a party of witness has declined to answer cross-examination questions. Id.  The Department explained that otherwise a party or witness may appear at the live hearing but “waive” questions under cross-examination, which would “circumvent the benefits and purposes of cross-examination as a truth-seeking tool for post-secondary institutions’ Title IX adjudications.”  Id.  

However, even if a witness or party refuses to submit themselves to cross-examination, or refuses to answer a question by a party advisor, as described above, the decision-maker may still rely on non-statement evidence. Id. at 30345. For example, the Department explains, where a complainant refuses to answer cross-examination questions, but video evidence exists showing the underlying incident, a decision-maker may still consider the available non-statement evidence and make a determination. Id. at 30328; see also Id. at 30346 (where video evidence of the underlying incident is available, and in such circumstances even if both parties fail to appear or submit to cross-examination the decision-maker would disregard party statements yet proceed to evaluate remaining evidence, including video evidence that does not constitute statements or to the extent that the video contains non-statement evidence. If a party or witness makes a statement in the video, then the decision-maker may not rely on the statement of that party or witness in reaching a determination regarding responsibility). Further, the decision-maker must consider this evidence without drawing any inference about the determination based on lack of party or witness testimony. Id. at 30328.  

Failure to Respond to Question by Decision-Maker

As discussed above, as a general matter a party or witness must “submit to cross-examination to avoid exclusion of their statements.” Id. at 30349. The Final Regulations note, however, that this exclusion does not apply to the refusal by a party or witness “to respond to a decision-maker’s questions.” Id. The Final Regulations explain this distinction as follows:    

This is because cross-examination (which differs from questions posed by a neutral fact-finder) constitutes a unique opportunity for parties to present a decision-maker with the party’s own perspectives about evidence. This adversarial testing of credibility renders the person’s statements sufficiently reliable for consideration and fair for consideration by the decision-maker, in the context of a Title IX adjudication often overseen by laypersons rather than judges and lacking comprehensive rules of evidence that otherwise might determine reliability without cross-examination. 85 Fed. Reg. 30349.   

An advisor may be any person of the party’s choosing, if the party does not choose an advisor, however, the institution may select an individual to serve in this role for the limited purpose of conducting the cross-examination. The party’s advisor of choice may be, but is not required to be, an attorney. Id. at 30298-30299.

In the event that neither a party nor their advisor appear at the hearing, the institution must provide an advisor to appear “on behalf of” the non-appearing party. Id. at 30339-40

This provision does not require that advisors be lawyers providing legal counsel nor does this provision impose an expectation of skill, qualifications, or competence. An advisor’s cross- examination ‘‘on behalf of that party’’ is satisfied where the advisor poses questions on a party’s behalf, which means that an assigned advisor could relay a party’s own questions to the other party or witness, and no particular skill or qualification is needed to perform that role.

Neutrality is Not Required

The Department emphasizes that advisors of choice, and advisors provided to a party by the recipient, are not subject to the requirements of §106.45(b)(1)(iii) which obligates Title IX personnel (Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions) to serve impartially without conflicts of interest or bias for or against complainants or respondents generally, or for or against an individual complainant or respondent.

Section 106.45(b)(6)(i) contains rape shield protections, providing that questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:

1. such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or

2. if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

The Department explains that “the rape shield protections serve a critically important purpose in a Title IX sexual harassment grievance process: protecting complainants from being asked about or having evidence considered regarding sexual behavior, with two limited exceptions.

The final regulations clarify that such questions, and evidence, are not only excluded at a hearing, but are deemed irrelevant.” Id. at 30351.

Determining Relevance

The basic test for relevance is whether the question posed is probative of the question of responsibility. In determining whether a question is relevant, the Department explains that the decision-maker must focus on evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true. 85 Fed. Reg. 30294. 
 
More specifically, questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are "irrelevant,” unless (1) such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or (2) the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. §106.45(b)(6)(i).   
 
The Final Rule §106.45 deems other forms of evidence and information not relevant or otherwise not subject to use in a grievance process: information protected by a legally recognized privilege; evidence about a complainant’s prior sexual history, and any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30294. Furthermore, questions that are duplicative or repetitive may fairly be deemed not relevant and thus excluded. Id. at 30361.  

Explaining Relevance Decisions

The Department explains that this provision “does not require a decision-maker to give a lengthy or complicated explanation” in support of a relevance determination. Rather, the Department states that “it is sufficient, for example, for a decision-maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations.” Id. at 30343. The Department explains that this requirement reinforces the decision-maker’s responsibility to accurately determine relevance, including the irrelevance of information barred under the rape shield language, but also reinforces the requirement that the decision-maker not have a bias for or against complaints or respondents generally or an individual complainant or respondent specifically. Id. 

Preponderance of the Evidence

The standard of evidence used when investigating and adjudicating sexual harassment cases under Title IX is the preponderance of the evidence, that is, it is more likely than not that the allegations made by the complainant are true. 

The preponderance of the evidence standard is used regardless of the status of the parties involved.

Selecting a standard of evidence represents the “degree of confidence” needed by decision-makers to reach a determination of responsibility. Id. at 30382.

Burden of Proof

The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient [the University] and not on the parties.

In-Person or Virtually 

Live hearings may be conducted with all parties physically present in the same geographic location or, at the school’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants to see and hear each other. See 34 C.F.R. §106.45(b)(6)(i). Further, at any party’s request, crossexamination may occur with the parties in separate rooms using technology that enables participants to see and hear the person answering questions. See Generally 85 Fed. Reg. 30355,30358. The Department states that it has determined that this approach allows the full value of cross-examination to be achieved while shielding the complainant from being in the physical presence of the respondent. Id. at 30355.5 

Record of Hearing

An audio or audiovisual recording, or transcript, of the hearing must be created, which must then be made available for the parties’ review. See 34 C.F.R. §106.45(b)(6)(i). The Department explains that such a recording or transcript will help any party who wishes to file an appeal pursuant to § 106.45(b)(8) and also will reinforce the requirement that a decision-maker not have a bias for or against complainants or respondents generally, or for or against an individual complainant or respondent. 85 Fed. Reg. 30362.   

The Department notes that Institutions are free to “adopt rules to govern a Title IX grievance process in addition to those required under §106.45, so long as such rules apply equally to both parties.” Id. at 30360. Thus, the Department explains, institutions may decide:

• Whether or how to place limits on evidence introduced at a hearing that was not gathered and presented prior to the hearing;

• To adopt rules controlling the conduct of participants to ensure that questioning is done in a respectful manner;

• To adopt rules that instruct party advisors to conduct questioning in a respectful, non-abusive manner;

• To decide whether the parties may offer opening or closing statements;

• To specify a process for making objections to the relevance of questions and evidence;

• To place reasonable time limitations on a hearing;

• To adopt evidentiary rules (but any such rules must comport with all provisions in §106.45).

  • However, while the Department gives discretion to institutions to adopt rules related to how admissible, relevant evidence may be evaluated by the decision-maker, the Department specifically prohibits institutions from adopting a rule excluding relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice, or adopting rules excluding certain types of relevant evidence (e.g., lie detector test results, or rape kits) unless specifically excluded by Final Rule §106.45, as described above.

See Id. at 30294. 85 Fed. Reg. 30360-30361, see also, Id. at 30319 (institutions may “adopt rules of decorum that prohibit any party advisor or decision-maker from questioning witnesses in an abusive, intimidating, or disrespectful manner.”)