The Title IX Pre-Hearing Meeting Is An Emerging Best Practice for Colleges and Universities

By: Joseph Vincent, M.L.S, Senior Associate

In a recent federal decision, Doe v. Univ. of Nebraska (D. Neb. Aug. 27, 2020), the court answered an interesting question regarding the need for a complainant to submit to cross-examination in a campus Title IX hearing at the University of Nebraska’s Lincoln (UNL) campus when the respondent admitted to the alleged misconduct on record. The decision wasn’t earth-shattering in that respect – the court held that the determination was based on the recording, and not on any statements or evidence supplied by the complainant – and therefore the respondent’s ability to cross-examine the complainant did not deprive him of any due process that altered the outcome of the hearing. The real gem from this case, however, is hidden in the footnotes and in brief portions of the text of the decision. Read the footnotes, my friend. They are sometimes the door to another world. But I digress.

While the actual decision pays very little attention to the pre-hearing meeting held by UNL administrators in the run-up to the actual hearing, the subtext shows that the University had and continues to have a particularly well-developed pre-hearing encounter between the hearing chair and each party/advisor. A couple of critical decisions were agreed upon by the hearing chair and the respondent in advance of the hearing that likely made the actual hearing more efficient, focused, and effective. Even more impressively, this case deals with allegations that pre-date­­ the 2020 Title IX Regulations. Industry practitioners would be wise to take notice and consider developing their own pre-hearing procedural step, as it is emerging as a best practice and offers many benefits. In this case, the hearing chair was able to reach a recorded agreement with the parties regarding what evidence would actually be considered by the hearing panel. The recorded agreement included a narrowing of the initial allegations to remove those that were clearly unsupported by the evidence. This carried a dual benefit of narrowing the issues needing the panel’s attention and clarifying for the parties how they should prepare for the hearing.

Leah Reynolds, one of my colleagues at TNG and a Title IX industry expert, recently outlined the many benefits of pre-Title IX hearing meetings. I won’t entirely duplicate the great work she did there but suffice it to say that the pre-hearing meeting is exactly what it appears to be – a meeting prior to the Title IX hearing. The meetings are typically facilitated by the Title IX Coordinator or led by the decision-maker or the chair of the hearing panel. There are usually respective meetings for each party and their advisor, rather than meeting as a group. The purposes and desired outcomes can vary considerably, but goals center around clarifying the purpose of the hearing, the practical mechanics of how the hearing will proceed, establishing the allegations and related evidence that will be considered, reviewing the rights and responsibilities of the parties, and advisors during the hearing, confirming attendance by the investigator and witnesses, etc.

In the context of the Title IX-mandated grievance process, the pre-hearing meeting is positioned at or near the end of the second 10-day report and evidence review period described in § 106.45 of the 2020 Title IX Regulations. This allows the chair to receive and review party responses to the finalized investigation report and all directly related evidence prior to the pre-hearing meeting. One valuable outcome – which apparently played a vital role in shaping the hearing at the center of the UNL case – is a review of these responses and the evidence that will be considered during the hearing. The UNL hearing chair used the meeting to clarify what evidence was “in,” what evidence was “out,” and what evidence would be precluded due to regulatory or policy limitations – like prior sexual history, physical or mental health records, or other spurious evidence that does not appear to have value in making a determination related to a policy violation. Ideally, the parties will leave a pre-hearing meeting with an expectation of what evidence will be permitted for consideration and what is out of bounds. Practitioners should consider getting verbal agreement to these terms (if the meeting is recorded) or might have the parties sign a statement to this effect at the conclusion of the meeting, or at least send all parties a summary of what was agreed.

The UNL chair also used the pre-hearing meeting to clarify which allegations would actually be considered by the panel, and it worked out to be a narrower, refined list of charges compared to the original notice at the beginning of UNL’s investigation. The judge in the case wasn’t a huge fan of this approach for unrelated reasons, but on the whole, using the pre-hearing meeting to clarify which allegations will be considered is a resource-saving move, both for the institution and the parties involved. The decision-maker and Title IX Coordinator may come away with an understanding endorsed by the parties – as UNL’s hearing chair did – that some allegations are not sufficiently supported by the available evidence. This discussion can provide helpful clarification to the parties regarding what, exactly, the decision-maker will be evaluating. This can help narrow and specify the evidence that will be considered at the hearing and focus parties’ preparation. Now that the regulations are in place, Title IX practitioners will want to pay careful attention to the requirement to invoke dismissal procedures pursuant to § 106.45, if necessary at this relatively late stage of the proceedings.

In order for a pre-hearing meeting to be effective, the decision-maker, the parties, and their advisors should be present (usually at separate meetings for each party). The Title IX Coordinator should ensure a documented record of the meeting is added to the case file and that any agreements, understandings, or acknowledgments reached are reduced to writing. Parties should leave the meeting with a clear expectation of how the hearing will progress, when and in what format they are permitted to contribute to the decision maker’s evidentiary considerations (through opening and closing statements, submitting to and conducting cross-examination of opposing parties, answering questions from the decision-maker, etc.) and, if applicable, topics and lines of inquiry that are off-limits.

Many colleges and universities have successfully introduced the pre-hearing meeting as a part of their Title IX resolution process. As in court, pre-hearing meetings may not be brief, will require diligent preparation, and may be intense, but their overall benefit far outweighs the commitment of time and resources necessary to make them happen. Now that live hearings are a part of Title IX resolution processes and are likely here to stay, colleges and universities will continue to look for ways to honor the regulations while making efficient use of administrators’ time, energy, people power, and resources. The pre-hearing meeting appears to be a process innovation that will benefit colleges and universities, and the professionalism of the hearings that follow.   

Interested in more in-depth training on pre-hearing procedures and best practices? Check out ATIXA’s Title IX Hearing Officer certification courses.