Published on: November 11, 2026
An ATIXA Tip of the Week by Erin Agidius, J.D., and Alisha Carter Harris, M.S.
No college or school Title IX decision-maker sits down to write a determination rationale thinking, “You know what this needs? A few unsupported assumptions and questionable reasoning.” At least, not an ATIXA-trained one, we hope! And yet, even the most experienced practitioners can fall into predictable decision-making traps that compromise the quality and defensibility of their decisions.
Decision-makers are human, at least, so far. Initial impressions, confirmation bias, perceptions of how individuals present themselves, and analytical shortcuts when conclusions seem obvious can all influence the decision-making process. Sound decision-making requires recognizing those tendencies and deliberately slowing the process down. The decision-maker’s goal should be to conduct disciplined analysis that lets the evidence, policy, and applicable standard of proof lead them to a conclusion the decision-maker can explain.
Don’t Stop at “I Know It When I See It”
We’ve all encountered a complaint that made us think, “Well, this seems obvious.” Maybe the allegations sound like clear-cut harassment, stalking, discrimination, or another policy violation. Or maybe the alleged conduct seems nowhere close to satisfying a policy definition. Either way, that initial impression does not constitute a thorough analysis.
Early impressions, assumptions, and confirmation bias can shape how a decision-maker evaluates subsequent information, weighs competing evidence, and assesses credibility. These factors can shift the focus from objectively evaluating the available evidence to reinforcing an initial conclusion.
We must actively resist these tendencies rather than assume we’re immune. One way to do so is to challenge our initial impressions by asking: “What does the evidence I’m treating as significant actually establish? Is there context that may change its meaning? What additional information might warrant reconsideration of an initial impression?” Is there another way to view this? What is the counter-argument to my current take on it, and is it, or should it be, persuasive to me? Our Board Chair, Brett Sokolow, has heard thousands of complaints as a decision-maker, and in a close call situation, he forces himself to write two full rationales, one supporting a finding of a policy violation, and one that supports a finding that policy was not violated. He writes the best arguments he can think of for each position, and then decides which rationale is more persuasive. Sometimes, he polls us to see which is more persuasive, to ensure maximal objectivity. Yes, he’s extra, but he has also figured out that the act of writing it down is different than the act of thinking it through, and his iterative process works for him. He’s done more of these complaints than anyone, so maybe he’s on to something?
He’s trained all of us at ATIXA that even seemingly decisive evidence requires context. For example, a text message that looks like an admission may mean something different when evaluated alongside the relationship history of the parties, surrounding communications, and complete evidentiary record. The decision-maker’s responsibility is not to defend an instinct, but to test it against the evidence.
Give the Analysis a Framework
Those of us in Title IX work tend to love structure. Fortunately, structured frameworks help to counteract cognitive shortcuts. Reaching a determination requires decision-makers to answer two distinct but related questions: Did the alleged conduct occur? And, if so, did it violate policy?
The first question requires determining whether the evidence establishes that the alleged conduct occurred under the applicable standard of proof. The second requires assessing whether the conduct, as established, satisfies the applicable policy definition. Each question requires independent consideration and should be clearly addressed in the decision-maker’s rationale.
For the second question, decision-makers should develop a model of proof and evaluate each required element of the applicable policy definition. Remember “parsing the policy” from your ATIXA Decision-Maker higher education or K-12 training? This is where that comes in. For example, a hostile environment analysis should go beyond a general conclusion that conduct constituted harassment. Decision-makers must evaluate the required elements, including whether the conduct was sex-based, unwelcome, severe, pervasive, and objectively offensive; whether it effectively denied equal access to the institution’s education program or activity; and then identify the evidence supporting, or failing to support, each element.
This approach helps decision-makers to assess whether the evidence establishes each required element of a policy violation. Evidence may be sufficient to establish one element but insufficient to establish another. By evaluating each required element separately, decision-makers can identify those distinctions and explain how the evidence supports their ultimate determination.
Throughout this analysis, decision-makers must also apply the applicable standard of proof. Under the preponderance of the evidence standard, certainty is not required. Rather, decision-makers must evaluate whether the weight of the available evidence establishes that it is more likely than not that the alleged conduct occurred and that the conduct satisfies each required element of the applicable policy definition.
Evaluate Credibility Beyond Demeanor and Presentation
Some parties are compelling storytellers. Some are charismatic and charming. Others are awkward, nervous, disorganized, unlikeable, guarded, emotional, flat, or difficult to follow. And let’s face it, some people are simply easier to connect with than others. Those characteristics are not substitutes for evidence.
Decision-makers should be especially cautious about letting demeanor or personality influence credibility assessments. Finding one party more likable, persuasive, attractive, or seemingly honest doesn’t mean their account is supported by the evidence. Those personal impressions can introduce bias into the analysis and influence how we weigh information unless we’re deliberate about screening out the noise and centering the facts.
Credibility is also not an all-or-nothing judgment about a person. A party or witness may provide reliable information about one issue and less reliable information about another. Rather than broadly labeling someone “credible” or “not credible,” decision-makers should evaluate specific statements and evidence. Are they consistent? Corroborated? Plausible in light of the circumstances? How do they fit with the rest of the evidentiary record?
Consistency also warrants careful consideration. Repeating the same account over time may support the reliability of an individual’s statements, but consistency alone does not establish accuracy. A consistent account may be contradicted by other evidence in the record, and consistency across multiple accounts may reflect coordination rather than independent recollection. Therefore, decision-makers should evaluate consistency in the context of the complete evidentiary record, considering how an account aligns with other available information, and whether any inconsistencies are material to the facts in dispute.
Don’t Mistake Lack of Independent Corroboration for Lack of Evidence
Wouldn’t it be nice if every civil rights complaint came with an impartial eyewitness, a recording, and a perfectly timed text message? In reality, we’re often lucky to get any one of those. But a lack of independent corroboration doesn’t mean we have no evidence, that we can’t reach a determination, or that the available evidence is insufficient. Circumstantial evidence can help determine what is more likely than not to have occurred. Contemporaneous communications, disclosures to others, behavior before or after an incident, documentary evidence, and other surrounding facts may all contribute to the analysis. A party can also self-corroborate by being more credible than the other party, testimony, or evidence. Compelling self-corroboration can overcome the presumption of non-responsibility owed to a respondent under Title IX, if the respondent lacks credibility. Where evidence is equal, self-corroboration won’t be enough, and independent corroboration will be key.
Decision-makers should avoid treating a “word-against-word” complaint as inherently irresolvable. Even without direct evidence, decision-makers must weigh the available information, assess the reliability of competing accounts, and determine whether the evidence, considered as a whole, satisfies the applicable standard of proof. Conflicting accounts do not necessarily mean that the evidence is equally balanced or that a determination cannot be reached.
Account for Inconsistencies Without Explaining Them Away
It’s human nature to want to fill in gaps. When something doesn’t quite add up, we instinctively look for an explanation, and sometimes we can come up with a perfectly reasonable one. Factors such as trauma, age, memory, disability, language, and other personal circumstances may influence how information is recalled or communicated. But just because something could explain an inconsistency or lack of evidence doesn’t mean it does. While these factors may be relevant to assessing inconsistencies in statements or accounts, decision-makers should not automatically rely on them to explain discrepancies or reconcile conflicting information without a sufficient factual basis. If a party can’t remember something, a decision-maker will never be able to determine why they can’t.
Not every inconsistency is a credibility crisis. Decision-makers should identify inconsistencies and assess their salience within the broader evidentiary record. This includes considering whether a discrepancy is material to the allegation or concerns a peripheral detail, whether other evidence provides relevant context or clarification, and whether the inconsistency affects the reliability or weight of the available evidence, particularly as it relates to the facts in dispute. We shouldn’t ignore inconsistencies, but we shouldn’t invent explanations for them either.
Articulate the Basis for the Determination
One of the most consequential pitfalls in decision-making is failing to clearly articulate how the evidence supports the determination reached. We’ve done all this work to evaluate the evidence, challenge our assumptions, assess credibility, and apply the appropriate standard of proof. Let’s not trip over the finish line by failing to explain how we reached our determination. Each rationale should show a cogent throughline of how the decision-maker got from A to Z. If that isn’t traceable, keep writing.
Summarizing the information provided by the complainant, respondent, and witnesses is an important part of documenting the evidentiary record, but a summary of evidence is not an analysis of the evidence. How did we weigh the evidence, resolve conflicting information, or apply the relevant policy provisions and standard of proof? We should know the word conclusory. It means a conclusion that lacks a stated basis. We need to show our work. Each conclusion needs to explain fully how we got there.
The written determination demonstrates how the decision-maker weighed relevant evidence, reconciled inconsistencies, assessed credibility where necessary, applied the standard of proof, and connected factual findings to each required policy element. The reader should be able to follow not only what the decision-maker concluded, but be able to clearly discern how the evidence led them there. Each disputed fact should be resolved and explained.
Clear organization, active language, and direct explanations make the analysis easier to understand. A second set of eyes can also help to identify assumptions, missing analytical steps, or language that makes sense to the writer but not necessarily to someone encountering the rationale for the first time.
Each of these pitfalls reinforces the importance of a deliberate and disciplined approach to decision-making. Sound determinations are not the product of instinct alone, but of careful evaluation of the evidence, consistent application of policy, and well-reasoned conclusions that decision-makers can clearly explain and defend. And, defend them, you will. One need only to check the latest headlines and think, “Somewhere, there are some decision-makers hoping that when the determinations are scrutinized, they hold up.”
They will if you slow down, challenge your assumptions, and do the analytical work. After all, the reader shouldn’t have to take our word for it. If they can’t follow the path from the evidence to the conclusion, we haven’t finished the job.
Continue the Conversation
This Tip of the Week is based on Time with IX: Ten Decision-Making Pitfalls and Best Practices to Avoid Them. Watch the recording or access it through My ATIXA.
Want to explore more common pitfalls and best practices to help decision-makers avoid them? Become an ATIXA Member to continue the conversation.