Filed Under: Appeals
The regs state with respect to dismissals: (v) Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; What does OCR mean by “challenge the outcome” given that the grounds for appeal would seem to only permit a substantive (versus procedural) challenge on the basis of bias or new evidence. Is the outcome otherwise challengeable on the basis that it is simply incorrect or against the weight of the evidence?
Section 106.45(d)(3)(v) requires recipients to “[p]rovide the parties a reasonable and equal opportunity to make a statement in support of, or challenging” the dismissal of a complaint, which as explained in the July 2022 NPRM, ensures a reasonable, equivalent opportunity for the parties to participate in the appeal process. 87 FR 41479; see also 85 FR 30397. The Department further clarifies that § 106.45(d)(3) requires a recipient to provide an opportunity to appeal the dismissal of a complaint on any of the bases set out in § 106.46(i)(1)(i), which are: a procedural irregularity that would change the outcome; new evidence that would change the outcome and that was not reasonably available when the dismissal was made; and the Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that would change the outcome. The preamble to the 2024 Title IX regulations explains that a decision being against the weight of the evidence can support an inference of bias in the implementation of a recipient’s Title IX procedures. 89 FR 33753–54 (citing Doe v. Oberlin Coll., 963 F.3d 580, 586-88 (6th Cir. 2020); Doe v. Univ. of S. Ind., 43 F.4th 784, 799 (7th Cir. 2022); Doe v. Tex. Christian Univ., 601 F. Supp. 3d 78, 89 (N.D. Tex. 2022)). Because § 106.46(i)(1)(iii) allows a party to appeal on the basis of decisionmaker bias, an appeal under the 2024 Title IX regulations can take into account whether a decision was against the weight of the evidence as part of a party’s assertion of bias. 89 FR 33754.