By Brett A. Sokolow, J.D., Chair, TNG Consulting, LLC; President, ATIXA
Those who are familiar with the 2020 Title IX regulations will know that the regulations distinguish between relevant evidence and directly related evidence (DRE). The regulations view this distinction as meaningful, because they ask Title IX Investigators and Decision-makers to be responsible for segregating evidence into these divisions. Relevant evidence goes in the investigation report. Directly related evidence goes in a separate DRE file that is shared with the parties, their advisors, and Decision-makers.
However, these categories are amorphous, and the way the regulations describe them appears to contain a flaw in logic that this blog will explore.
The investigation process is one that takes in all evidence, and then sifts it according to the type of evidence with the eventual goal that a final determination by the Decision-maker(s) will rely only on relevant evidence and will exclude and not rely on any DRE. What is relevant and what is DRE is decided at two stages: first by the investigator(s) and then by the Decision-maker(s) with input (review and comment) from the parties and advisors at each stage. Going into the hearing, ideally there is a final investigation report that contains all relevant evidence, and the DRE file that everyone agrees contains evidence that will not be relied upon. If there are disputes about what is relevant and what is DRE, the parties share their perspectives first with the investigator(s), then with the Decision-maker(s). Shifting the evidence from the relevant category to the DRE category, or vice-versa, can occur during pre-hearing discussions or at the hearing itself.
Defining our Terms
All of this sifting is complicated by the fact that the Office for Civil Rights (OCR) has declined to define relevance or DRE, instead stating that recipients should give those terms their plain meaning. Well, that’s pretty straightforward for relevance, as it has a common legal definition: evidence that tends to prove or disprove a fact in issue in the complaint. But DRE does not have a commonly accepted meaning. What to do with that? ATIXA crafted a logical model definition: evidence that is connected to the complaint but which is neither inculpatory nor exculpatory. This is a fancy way of saying DRE is defined as evidence that is not relevant, right?
Now Let’s Look at the Logic
ATIXA’s thinking is that relevant evidence and DRE cannot intersect or overlap. However, the regulations appear to contemplate that they do. We think this is a logic flaw in the regulations. They can’t overlap if the whole construct is to make sense. The point of segregating the evidence is two-fold: one, to ensure the decision only relies on relevant evidence; and two, to ensure that all parties have access to all evidence (inculpatory and exculpatory) so that they can argue that it be considered by the Decision-maker(s) at the hearing.
With respect to overlap, the OCR assumption seems to be that DRE is the wider category, and relevant evidence is narrower. Thus, the DRE file would contain all evidence, DRE and relevant.
The investigation report would only contain relevant evidence, a subset of the DRE. While that seems superficially logical, there is no definition of DRE that incorporates relevance that makes sense as a stand-alone definition of DRE. Meaning, if OCR’s approach that DRE includes relevant evidence is accurate, you can’t actually segregate the evidence into two logical distinguishable piles. Instead, the correct visual is:
How does a practitioner operationalize this in a way that makes sense of the regulations? The best approach our investigative team has been able to come up with cross-references the report and the DRE file. If you take the regulations literally, all DRE must be removed from or redacted from the investigation report. Yet, doing so can leave the report without context, such as in a situation where a text thread between the parties is included with only its relevant sections, but no other parts of the text thread. Thus, what we’d do in that situation is note in the report that a section of the texts is redacted and note where in the DRE file the removed sections of the thread can be found. Then, in the DRE file, we provide the entire text thread, but use color-coding to show the section(s) that is relevant (and thus found in the report) and the section that is DRE, which is only found in the DRE file, and not in the report. Thus, the reader has the whole context, but can clearly see what evidence has been deemed relevant and what has not.
Our approach then is to include all relevant and DRE in the DRE file, for ease of use, but not because the relevant evidence is DRE. The report is therefore the narrower document, and the DRE is a broader file. So, there is one approach to segregating the evidence that requires separation so that all participants know what is what but all evidence can be seen in the DRE file, and is visually distinguished there by color-coding. While the investigation report still can feel stilted because context is missing/removed, that context can be provided by reviewing the DRE file, which is clearly cross-referenced for ease of use. It can’t be relied upon, but the context can offer some additional coherence and/or context.
A Variation on the Theme
Some investigators have reported to us that they are taking the approach of including the DRE in the investigation report but coding it as such in some visual way (color-coding, footnotes, etc.) so that the Decision-maker knows it should not be relied upon. This is certainly easier to read, but not our preferred approach. First, it seems to deviate from the regulations precept that the report contain only relevant evidence and second, it might increase the risk of the Decision-maker not segregating the evidence correctly or relying on DRE that it should not. Perhaps this approach isn’t fatal, but we prefer to flip it, so that the DRE is the complete file, not the report.