Filed Under: Employee
Is a recipient permitted to conduct teacher or faculty discipline processes in which sanctions are reviewed by a separate committee, and which can lead to tenure revocation proceedings, outside of the requirements of 34 C.F.R. §106.45, or are recipients required to combine the 6 determination regarding responsibility and sanctions aspects of a Title IX grievance process into a single process subject to the requirements of 34 C.F.R. § 106.45?
The Title IX regulations, at 34 C.F.R. § 106.45(b)(7), require a recipient’s decision-maker to issue a written determination regarding responsibility that must include, among other items, the result as to each allegation and rationale for the result, any disciplinary sanctions imposed by the recipient against the respondent, and whether remedies will be provided by the recipient to the complainant. The regulations do not preclude a recipient from using one decision-maker to reach the determination regarding responsibility, and having different decision-maker(s) (e.g., a tenure committee) determine appropriate disciplinary sanctions (including making such a decision during a separate process, such as another hearing), so long as the end result is that the single written determination includes any disciplinary sanctions imposed by the recipient against the respondent, pursuant to 34 C.F.R. § 106.45(b)(7). The issuance of a written determination cannot be a piecemeal process that is broken down into chronologically occurring sub-parts. Recipients should also remain aware of their obligation to conclude the grievance process within the reasonably prompt time frames designated in the recipient’s grievance process, under 34 C.F.R. § 106.45(b)(1)(v). Additionally, each decision-maker—whether an employee of the recipient or an employee of a third party such as a consortium of schools—must not have a conflict of interest or bias for or against complainants or respondents generally, or with respect to an individual complainant or respondent, pursuant to 34 C.F.R. § 106.45(b)(1)(iii). The above principles apply to recipients that are not postsecondary institutions, with respect to determinations regarding responsibility and sanction decisions involving teachers, staff, or other employees, except that the regulations do not govern whether a non-postsecondary institution holds a hearing as part of its Title IX grievance process.