Adventures in Title IX Advisorland, Part One

By: Brett A. Sokolow, Esq., Chair, TNG

Since the 2020 Title IX regulations have taken effect, colleges all across the U.S. are scrambling to find advisors to accompany the parties through the formal resolution process. While many colleges and universities elect to use internal advisors, many are also outsourcing, especially when they want attorney advisors who are well-acquainted with the resolution process. As a result, TNG consultants have been busy serving as advisors with some of the earliest Title IX cases to go through formal resolutions and hearings on college campuses.

Here are some takeaways and lessons learned from our first forays under the new Title IX rules:

  • Title IX Coordinators should anticipate how much time advising will take. In one recent case, TNG had a cap of 12 hours built into our agreement with the college, but the advisor wound up needing 25 hours to advise the student. While an extension was arranged, we don’t want to be in the position of having to abandon an advisee mid-process because of an underestimate of the number of hours needed per case.
  • Coincidently, 25 hours was on the light side, as this particular college engaged us only to advise during the pre-hearing and hearing, and the complaint was not complex. When you add advisors during intake, investigation, and/or appeals, the number of hours can easily run to 60-80, especially in complex cases. Plan ahead and budget accordingly.
  • Also, when a college is engaging an advisor on behalf of a student (or employee), it is important to be very clear to the advisee what the scope of engagement is, and what the role of the advisor will be. In one case, TNG’s advisor was engaged only for the hearing, and when the advisee wanted follow-up related to the appeal, it fell outside the scope of the contract. Sometimes, only doing the minimum required by the Title IX regulations isn’t going to be very satisfactory to the parties, once they know they have a right to an advisor for all parts of the process, but if the university is limiting the scope of what the advisor is engaged to do, the parties need to know that up front.
  • Procedures, so far, feel a little half-baked. That’s understandable, as there is so much that is new, but some aspects of the resolution process are
    not changed by the regulations, and should already be old hat for most colleges. In one case, the investigation report was incomplete, and then was supplemented by the Title IX investigators the day before the hearing. No procedural provision permitted that to occur at the last minute. Shouldn’t that supplement of the report trigger another ten-day review period according to the regulations? The entire process should be designed to avoid last-minute changes and surprises, as OCR envisioned in the regulations. While this change to the report benefitted the respondent who TNG was advising, it would be easy to expect the complainant’s advisor to be quite unhappy about it.
  • In a different complaint, a pre-hearing outline described very thorough questioning at the hearing by the advisor, but then at the hearing, the TNG advisor for the complainant was only permitted to ask questions of the respondent. The advisor was not permitted to ask questions of the complainant, or any witness. This was a surprise, given the pre-hearing outline, and technically, wouldn’t questions of a “respondent’s
    witness” fall into the category of cross-examination by the complainant’s advisor, and be required to be conducted by that advisor, according to the regulations?
  • In this case, the hearing chair permitted a brief recess, at which point the TNG advisor prepped the complainant to ask questions directly of the witnesses, though both the advisor and complainant had gone into the hearing believing that it was the advisor who would do so. Luckily, the TNG advisor had scripted all the questions in advance, so the handoff to the complainant was not fatal. Still, it was unexpected, the complainant was not girded for it, and the trauma of the complainant questioning the witnesses directly would have been avoidable with a better-refined hearing procedure.
  • In another case, the TNG advisor to the complainant raised a procedural error during the hearing, and suggested the chair consult the university’s legal counsel about it. Instead, the chair decided the issue in favor of the respondent. A different administrator then raised the issue with legal counsel, who advised the chair to reverse their decision. This happened toward the end of the hearing, and the witness then had to be recalled and permitted to testify as the complainant’s advisor had earlier insisted. Perhaps the chair would have been wiser to take a break and consult legal counsel directly at the time the issue was raised, rather than having to recall the witness later? Thank goodness another administrator intervened, but chairs really need to know when to consult their legal counsel to prevent a bad call on the admissibility of evidence that could lay the groundwork for a successful, but unnecessary, appeal.
  • Perhaps the most important takeaway from these early Title IX advisor adventures is the simplest. Please, please, hearing administrators, follow your own procedures. Training rarely addresses this, and most colleges don’t do the full dress mock hearings that would help to acclimate the hearing panel to the new regulatory requirements.

In a recent case, the college had a clear policy that evidence that was not raised during the investigation could not then be later introduced at the hearing. This is a great policy, and one that is very necessary to help protect the parties from being sandbagged at the hearing with evidence they have not had a chance to review in advance and prepare to address. In this case, the respondent submitted a two-page statement to the investigators, and otherwise refused to be interviewed and answer any questions. Under the college’s own rules, that meant the respondent’s testimony at the hearing was confined to the contents of those two pages, and nothing more.

Accordingly, the TNG advisor prepared questions only on the contents of the statement. They could not prepare questions on anything else, as no other testimony was provided by the respondent prior to the hearing. At the hearing, the panel and (really oddly) the investigator all asked the respondent questions that allowed the respondent to provide answers that went way beyond the scope of the two-page statement. The TNG advisor objected, but the questions were permitted anyway, with the rationale that the respondent had the right to answer beyond the scope of the two-page statement. No, the respondent did not have that right. The procedures were quite clear on this. The respondent waived that right by failing to cooperate fully with the investigation. This provided the respondent with an unfair advantage of surprise at the hearing, and the added advantage that the advisor was not prepared to ask follow-up during cross-examination about answers the respondent gave on direct examination that were beyond the scope of the initial two-page statement.

If the parties can all withhold evidence until the hearing and then drop it at the last minute, why wouldn’t this almost always be the preferred strategy for the respondent, and perhaps also the complainant? Score one for a great policy; score zero for failing to follow it. Or even -1. The chair is responsible to ensure that the hearing provides a level playing field. Instead, the chair tipped the advantage to the respondent.

Yes, it was clearly misfeasance rather than malfeasance, but it was not the kind of competence that chairs must be able to demonstrate. If any party wants to offer new evidence at the hearing, unless the parties waive the right to prior review, the best practice is to pause the hearing and allow the investigation to resume to review the new evidence, incorporate it into the investigation report, and give the parties and their advisors ten days to review and comment upon it prior to the hearing, as guaranteed by the Title IX regulations.

Over the next two months, TNG has many more hearings scheduled. Stay tuned for more Adventures in Advisorland. In Part 2 of this series, we’ll report back with more lessons learned and key takeaways for administrators, attorneys, and advisors engaged in the Title IX resolution processes prescribed by the new 2020 regulations.

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