By Kayleigh Baker, J.D., Consultant, TNG Consulting
Prior to 2020, as part of the overall resolution process for allegations of sexual misconduct, Title IX decision-makers were able to review holistic information from the parties, either at a hearing or in writing, in order to determine sanctions and remedies. Commonly, student Complainants offered this additional information via a “victim impact statement,” and some institutions also allowed Respondents to offer impact statements and/or mitigation statements in their resolution processes. Since this information is often not relevant to determining whether a policy violation occurred, institutions are now grappling with how to both comply with the regulations and still incorporate this information when determining sanctions and remedial actions.
The 2020 Title IX regulations are clear that decision-makers should only consider relevant information when determining whether a Respondent violated policy; however, when it comes to determining sanctions, the Department of Education allows institutions greater discretion regarding what information to consider. As such, many institutions allow decision-makers to consider additional information, including impact statements, in the sanctioning phase of the formal grievance process.
What is an impact statement?
Impact statements provide a mechanism for the parties to share more holistic information about themselves, the impact the reported misconduct and/or resolution process has had on them, and any information related to sanctioning. Statements can include mitigation information offered by the Respondent; the (potentially unintended or unknown) impact a particular sanction may have, such as loss of an internship or job offer if suspended; and requests by Complainants for sanctioning leniency or severity, including identification of aggravating factors. There really is no limit on how long submitted statements can be, though you can impose a limit in your procedures, if you wish.
TNG’s consultants serve as hearing decision-makers each week for colleges and schools, and we find that management of impact evidence is variable at best, and often an afterthought. Thus, we see parties often inserting impact evidence into opening and closing statements (where those statements are permitted in hearings), which the decision-maker(s) then needs to disregard as irrelevant to the finding. Creating an opportunity to submit impact statements can avoid some of the awkward introduction of evidence at the hearing that should really be excluded, per the regulations.
Federal regulations have never required impact statements, nor have institutions been expected to deviate from their sanctioning norms as a result of their inclusion in the decision-making process. Sanctioning determinations have, and continue to be, different from determinations of policy violations. For more information on sanctioning determinations, be on the lookout for ATIXA’s forthcoming whitepaper on sanctioning sexual harassment in higher education.
We encourage readers to incorporate a protocol for impact statements into their Title IX procedures, as a best practice. As included in ATIXA’s One Policy, Two Procedures Model (1P2P), ATIXA is in favor of allowing parties to submit impact statements to assist the decision-maker(s) in determining sanctions, if any. Sanctioning decisions can be really tough to make, and having insights from the parties can be very helpful to decision-makers. 1P2P includes procedural recommendations such as when impact statements should be considered (only after a responsibility determination is made), to whom the parties should submit the statements (the Hearing Chair or Title IX Coordinator), and whether they should be shared with the other party (they should be). However, this is far from the only approach when it comes to impact statements, so this article examine ATIXA’s recommendations and rationale.
When should parties submit an impact statement?
- ATIXA recommends that parties submit a written impact statement prior to the hearing. This approach ensures that once a hearing concludes, the decision-maker(s) can deliberate and, if a policy violation occurred, sanctioning determinations can occur without delay. This is especially helpful in jurisdictions or at institutions with quick turnaround times for outcome letters and/or those that have the same individual or group make the determinations for both responsibility and sanctioning.
- Some institutions also allow parties to submit impact statements after the hearing. This approach can also work well and gives parties the opportunities to include things that occurred in the hearing within the statement. This approach may make sense in processes that have separate individuals or groups making determinations for responsibility and sanctioning. If a school chooses to allow this approach, it should set a firm deadline to allow the decision-maker(s), if appropriate, sufficient time to consider the impact statements without causing an undue delay in delivering the outcome letter. Under the 2020 regulations, the written determination must not only include the finding (responsible or not responsible), but also any sanctions and it should be delivered in a reasonably prompt manner, simultaneously to all parties. Usually a day or two post-hearing is sufficient.
- Other institutions allow parties to submit impact statements, verbally, during a hearing. This often comes in the form of a closing statement to the decision-maker(s). If you use this approach, exercise caution. The decision-maker must be careful not to consider the impact statements when weighing the evidence and determining whether a policy violation occurred.
To whom should parties submit an impact statement?
- ATIXA recommends that parties submit written impact statements to the Hearing Chair, though it may be worthwhile to have the Title IX Coordinator or a Hearing Facilitator take receipt of the statements in order to provide a degree of separation.
- If the parties submit impact statement directly to the Title IX Coordinator, the Title IX Coordinator can then easily provide the statements to the decision-maker(s) and parties, if need be, and this approach ensures that the decision-maker(s) only accesses the impact statements if there is a policy violation. This way, impact statements will not influence the decision-maker(s) in determining responsibility. In a protocol common to TNG decision-makers, deliberation takes place immediately post-hearing. If the decision-maker(s) finds a violation, they notify the Title IX Coordinator, who then forwards the impact statements to the decision-maker(s). If they do not find a violation, the Title IX Coordinator never shares the impact statements.
- As described above, some schools default to having the decision-maker(s) receive the impact statements. There is nothing in the regulations prohibiting this approach; however, if this is your approach, the decision-maker(s) should specify in their rationale if and when they considered the impact statement(s).
When should impact statements be shared with the parties?
- ATIXA firmly recommends that impact statements, if relied upon, should be shared with the other party. This ensures that the parties have access to all information that is considered by decision-makers in determining responsibility and sanctions. If you allow for written submissions, there are a few logical opportunities to share the impact statements between the parties.
- After the hearing, regardless of the outcome and whether the Decision-maker(s) relied upon the statements
- After the hearing, in the event there is a finding of responsibility
- Only if there is a finding of responsibility AND the impact statements influenced the sanctioning decision(s)
- ATIXA recommends that parties will receive impact statements in the event of a finding of responsibility on one or more of the allegations. This makes good sense. However, there is a word of caution with this approach. If you tell the parties ahead of time that they will receive the impact statement if the decision-maker(s) find that there has been a policy violation, this may prematurely alert the parties to the outcome of the complaint prior to delivery of the outcome letter. This can be a complication because it could lead to parties receiving the impact statement several days or more before the outcome letter. Although it makes sense to let the parties know ahead of time that the other party may receive their impact statement, it is unnecessary to highlight that the other party will receive the impact statement only if the decision-maker(s) reach a specific outcome. Thus, to add to the protocol noted above, if the Title IX Coordinator sends the impact statements to the decision-maker(s) because there has been a finding of violation, the Title IX Coordinator will then exchange the submitted statements between the parties at the same time.
- In the event that only one party submits a written impact statement, the same process should apply, just with only one party receiving a statement. If no parties submit an impact statement, then there is nothing to share, and the decision-maker(s) should continue with their sanctioning deliberations.
Can parties respond to each other’s impact statements?
Impact statements are meant to speak to the party’s individual circumstances and to allow for the decision-maker(s) to consider the parties holistically during sanctioning. As such, impact statements are distinct from the evidence collected and shared during the investigation and/or at the hearing. The purpose of an impact statement is to allow a party to speak to the decision-maker(s) about sanctions and remedies. Although it is important to share the impact statements with all parties to ensure access and provide additional transparency, it makes little sense for a party to respond to, or try to challenge, another party’s first-hand account of how something has or may impact them. Instead, institutions should encourage all parties to submit an impact statement that is individually and holistically focused to allow the decision-maker(s) to have access to as much information as possible when determining sanctions and remedies.
All in all, impact statements can be a useful piece of the puzzle for Decision-makers to use in determining appropriate sanctions. However, impact statements can complicate your process if you have not taken the time to think through how they will be used and when. But, with a little preparation, they will easily become another routine part of your hearing process as well as a way to ensure that parties feel heard. The impact statements also empower the Title IX office to design appropriate remedies to address the long-term impacts on the Complainant and the larger community.
 For the sake of brevity, all statements used during the sanctioning phase will be referred to as “impact statements” in this article.
 34 C.F.R. § 106.45(b)(7)
 Higher education institutions are required by VAWA to “provide timely access to the accuser, the accused, and appropriate officials to any information that will be used after the fact-finding investigation but during informal and formal disciplinary meetings and hearings.”