The Title IX Process Under the 2020 Regulations Explained by a Title IX Attorney

By: Ben North

The 2020 Title IX Regulations have a very strict process that schools must follow after receiving notice of an allegation of alleged sexual harassment (which includes allegations of sexual assault, stalking, domestic violence, and dating violence). These rules are codified at 34 C.F.R. §106.45. The process begins when an accuser (referred to as the “Complainant”) decides to report allegations of sexual assault, sexual harassment, or some violation under Title IX. The allegations may be reported directly to the school’s Title IX Coordinator or to a faculty or staff member designated who has the authority to institute corrective measures on the institution’s behalf. 

When a Title IX Office receives a formal complaint by a complainant, the Title IX Coordinator must determine whether the complaint alleges conduct that, if true, would constitute sexual harassment (which includes sexual assault), defined as conduct on the basis of sex that is so (1) severe, (2) pervasive, and (3) objectively offensive that it (4) effectively denies the Complainant access to his/her education. Sexual assault automatically qualifies as sexual harassment. If the formal complaint does not allege sexual harassment, or if the institution does not have jurisdiction over the Respondent (the accused), the Title IX Coordinator must dismiss the complaint. 

Once the allegations have been submitted and accepted, the Complainant will be contacted by the Title IX office to determine whether they would like to pursue the formal or informal resolution processes. An informal resolution process resembles a settlement negotiation in civil or criminal court, insofar as the informal resolution requires both parties to agree on an outcome and to execute an agreement. A formal complaint, however, will start a formal investigation per the institution’s grievance procedures and the 2020 Regulations. 

The formal process begins when the Title IX Office issues both parties a “Notice of Allegations,” which must contain sufficient details of the allegations – including the date and time of the harassment, if known – such that the Respondent may prepare for the investigative interview. The Notice of Allegations must also contain, among other things, a copy or reference to the procedures and an affirmation that the Respondent is presumed “not responsible” unless and until a determination of responsibility is made at the end of the formal process. Following receipt of the Notice of Allegations, the Complainant and Respondent will be contacted by an investigator, who may be a university official or an external person (usually an attorney) retained by the university for purposes of the investigation.

During the investigation process (and at all times during the process), the burden of proof is on the university – not the students – to discover and retain relevant evidence. As part of this obligation, the investigator will interview the Complainant and Respondent, as well as any witnesses, to discover any relevant evidence. There are only minimal restrictions on what evidence may be discoverable or admissible. For example, hearsay testimony is permitted. One of the minimal restrictions, however, is a restriction on evidence concerning the parties’ past sexual history; such evidence is admissible only under very specific circumstances. The parties have the right to present fact and expert witnesses as well as documentary evidence (such as emails, texts, social media, etc.).

When the investigation is nearing its end, the investigator will draft and send to the parties a “Preliminary Investigative Report.” Upon receipt of the Preliminary Report, both parties have ten (10) days to submit a written response if they so choose. Such response may contain requests for additional investigation (including new evidence or questions for witnesses), objections to the inclusion or exclusion of certain evidence, or objections to the investigator’s bias towards or against either side. 

After the investigator receives the responses to the Preliminary Report, the investigator will assess whether additional investigation need take place, or whether action needs to be taken in response to any objection raised by either side. After such steps have been taken, the investigator will issue a Final Investigative Report, which concludes the investigation. The parties will have another ten (10) days to submit a written response to the Final Report, in preparation for the hearing. 

The 2020 Regulations provide for an adversarial live hearing with live cross-examination. The parties may be permitted to give a brief opening statement and closing argument. Both parties, as well as any witnesses, will be cross-examined by the advisors. If either party does not have an advisor, an advisor will be appointed for that party by the school. While the school will appoint a free advisor, such advisor need not be an attorney or have any legal training or any training in cross examination; for this reason, it is always in the best interest of the parties to have a retained attorney or experienced Title IX Advisor who will have experience in effective cross-examination. 

In the days following the hearing, the hearing officer or panel will determine whether the Respondent is “responsible” or “not responsible.” Such determination will be issued to the parties simultaneously, and both parties will be permitted to appeal on specific bases and within a specific time frame set by university policy. If an appeal is received, the matter will be referred to an appeal officer, who will be a different person than the hearing officer/panel or the investigator, and who will decide the appeal. After the appeal is decided, the matter is final, and the case is closed. 

If a student (or a school administrator or professor) believes that his or her rights were violated or that the school did not follow these procedures in good faith, they should contact a Title IX attorney as soon as possible. Whether a Complainant or Respondent, the consequences of a Title IX proceeding can be long lasting, and it is very important to make sure that the school does not violate any guaranteed rights.