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The Deeper Complexities of the Title IX Cross-Examination Rule

By: The TNG Partners

In this post, TNG’s partners and industry experts illustrate some of the complexities of the Title IX cross-examination rule with respect to a pattern case study.

Suppose there is an allegation at College B of sexual misconduct involving a student, Robbie Respondent. College B learns of a previous finding at College A that Respondent had violated the sexual misconduct policy when he was a student there. He then transferred to College B and allegedly re-offended. Could the new complaint at College B involving the same Respondent consider the previous violation at College A as part of a pattern only if all the relevant witnesses from College A testified at the current hearing at College B? How does this work under the new Title IX regulations?

Kim Pacelli: I think my analysis would depend on what is the source of the evidence of the prior finding? Wouldn’t the best evidence be a document or statement from a College A official documenting the prior determination? I haven’t puzzled through all the FERPA issues there, so let’s assume it meets a FERPA exception or was a record that came in through the admissions process. If so, the College A official who made the finding can share that with College B in a hearing as a witness who submits to cross-examination and the College A record can thus be considered as a statement that may support evidence of a pattern of misconduct.

Michael Henry: I agree. The prior history of misconduct is what’s relevant, so the documents affirming a previous finding are what’s relevant to the current hearing. I see it as analogous to a police report or SANE exam where the respective officer or nurse who drafted the record would need to testify as a witness at a hearing for their statements in those records to be relied upon by the decision-maker, per the new Title IX regulations. I don’t think it would be required for the parties and witnesses involved in the College A hearing to testify at College B’s hearing as well. I don’t think College B needs to relitigate the underlying allegations any more than a criminal judge would have to relitigate prior convictions when considering them as part of sentencing for a current offense.

Brett Sokolow: Ok, so suppose the author of the College A outcome letter (their decision-maker) comes to testify at College B’s hearing. Let’s say the outcome letter contains statements of the decision-maker, but also statements of the parties and witnesses (as such letters commonly do). The decision-maker testifies and submits to cross-examination, but the parties and witnesses do not. We know under the new regulations that the statements of College A through its decision-maker can now be relied upon by College B. However, the statements of the parties referenced in the College A outcome letter cannot be relied upon because they have not submitted to cross-examination by College B, thus it’s possible that College B might not be able to determine that there really is a conforming pattern based on what is shared by the College A decision-maker. While I agree with the criminal analogy, Michael, criminal law has no absolute rule that you can’t rely on statements that works the way the Title IX regulations do, because of all the exceptions to the hearsay doctrine that apply in court but not to campus hearings under Title IX. Does that create a meaningful difference between having the College A decision-maker testify versus having the witnesses to College A’s process testify?

Michael Henry: I think I see your point here, Brett. So, before the new Title IX regulations took effect, if a Respondent gave a statement to law enforcement, and that statement was included in the written police report, the interviewing officer could testify at a hearing regarding what Respondent told him, as documented in the said police report. Under the new Title IX regulations, that’s not the case any longer. If the Respondent declines to submit to cross-examination at the hearing, then the decision-maker cannot rely on the officer’s testimony or his written report of what the Respondent said in his statement. The officer’s own statements can be relied upon, if the officer testifies and is willing to submit to cross-examination, but not the officer’s statements about the Respondent’s statements, since the Respondent is the original source of the officer’s knowledge about what was stated. If so, as preposterous of a result as it may be, I see the argument for why College B could not consider the prior disciplinary finding from College A without the testimony of the parties and witnesses in that process.

Brett Sokolow: I want to add what I think is a nuance. The finding of College A can come in when testified to by College A’s decision-maker, but is that finding worth anything to College B from an evidentiary perspective if the statements needed to prove a pattern cannot be relied upon because the original College A parties and witnesses will not participate in the College B hearing? I am not sure I am willing to go down the road of saying we can’t consider statements based on statements, but can the Title IX regulations be read to require that? Let’s say the finding is admissible, but so what, if it doesn’t prove a pattern without relying on the statements of witnesses to College A’s process who are not witnesses in College B’s hearing.

I think could be double hearsay, but what is the truth of the matter being asserted? That College A found there to be an offense? Or that there was in fact an offense? Can’t it be argued that College B is not adopting the truth that the offense alleged in the College A hearing occurred, but the conclusion that College A found that its policies were violated? Isn’t the latter sufficient to be relied upon by College B to conclude a pattern of misconduct exists? I tend to think a well-written outcome rationale by College A could lay sufficient foundation for this testimony by its decision-maker. It would need to be clear in College B’s decision rationale that the statement relied upon is that of College A’s finding and outcome rationale, not the statements of any party in that proceeding, as captured in that rationale letter. Maybe this is splitting hairs, but will the Biden administration care to prohibit colleges from splitting the Trump administration’s hairs? Does it depend on whether the College A finding winds up being outcome determinative of the College B finding of a pattern?

Daniel Swinton (with the win!): I think a slightly softer version of the strictest interpretation here is accurate – mainly the one Brett summarizes above. I think a strict constructionist view of the Title IX regulations ignores the foundation upon which most of the deliberate Indifference, contract, and negligence-based caselaw in this area rests. I think caselaw pretty clearly expects that schools will consider previous allegations and findings such that strict compliance with the regulations would likely subject a school to heightened legal liability. If a school can’t consider previous findings against someone like the MSU abuser Larry Nasser because the previous decision-maker or hearing panelists are not available for cross-examination, how can a pattern be reasonably addressed and remedied when a campus is at risk?   So, for me, the strict constructionist approach of rote compliance with the Title IX regulations clashes with the Title IX obligation to identify, track, and inhibit patterns of misconduct. The courts have repeatedly criticized colleges for failure to account for similar, foreseeable misconduct. Sure, some legal liability could attach to a technical failure to follow the regulations (which is not the same thing as a due process violation), but I think a failure to account for and at least consider conduct for which a person was found responsible would be exhibit A in a negligence lawsuit by any pattern perpetrator’s second victim. Almost all of my expert witness cases revolve around some iteration of such situations. I also think this is one of the issues that the Biden administration may try to clarify in terms of enforcement right out of the gate. Or maybe I just hope…

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