ATIXA announces the OCR OPEN Center Response Repository. ATIXA will update responses from the OCR OPEN Center as we receive them. Responses are listed in order of date starting with most recent. You may also search responses by topic areas at the top of the page. The OCR OPEN Center Blog responses are also linked below the Question/Answer section. If you have received a response from the OPEN Center and would like to add it to this repository, please email info@atixa.org.
Inferences & Deference (Response 8/13/2020)
The regs are clear that no inferences are to be drawn solely from non-participation of a witness or party, but the regulations also say OCR will not will not second-guess the recipient’s determination regarding responsibility, which may rely on an improperly drawn inference. How does OCR reconcile these seemly oppositional provisions?
K-12 Conduct Proceedings (Response 8/13/2020)
The complainant and her family decide they don’t want to file a formal complaint (too complex and lengthy). The K-12 school offers supportive measures and asks the school to resolve the allegations under its code of conduct instead. The school agrees and resolves outside of 106.45 using its conduct process. Is this permissible?
Further, the complainant changes her mind as the conduct investigation unfolds, and decides to file a formal Title IX complaint. Now, does the K-12 have to stop its conduct process and redo its entire investigation in a way that complies with the regulations?
K-12 Written Questioning (Response 8/13/2020)
For recipients that are elementary and secondary schools, the regulations provide that before reaching a determination regarding responsibility for sexual harassment, the decision-maker “must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness” and “provide each party with the answers.”
- Do the regulations prohibit the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions?
- Even if the answer to Question 1 is no, do the regulations permit a school district to adopt a policy prohibiting the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions?
- Do the regulations permit a school district to adopt a code of conduct requiring students to answer written, relevant questions of a party to the process of making the findings of fact supporting a decision-maker’s determination regarding responsibility for sexual harassment? If so, do the regulations permit a school district to discipline a student for violating such a code of conduct without engaging in the processes prescribed by 106.45?
- May a decision-maker draw an inference about the determination regarding a party’s responsibility based on a party’s refusal to answer written, relevant questions?
- May a decision-maker draw an inference about the determination regarding a party’s responsibility based solely on a party’s refusal to answer written, relevant questions?
Assessing Evidence (Response 8/13/2020)
Suppose the respondent’s advisor isn’t well-prepared and forgets to cross-examine the complainant during the hearing on a key statement related to credibility. What is the effect of this on the statement made by the complainant – may or may not the decision-maker consider it, and please explain why or why not?
Separate But Equal? (Response 8/13/2020)
With respect to single-sex programs, will OCR permit a postsecondary recipient to offer a separate, but equal equivalent opportunity for the other sex (assuming no single-sex exception is permitted by the regs), or must all opportunities be offered inclusively to all sexes (again, unless an exception permits)?
Investigation Report Inquiries (Response 8/13/2020)
- Is it OCR’s expectation that a recipient will cause an investigation report to be transmitted to the decision-maker, and if so, at what point in the process?
- The provision on prior sexual history and predisposition seems to apply to the hearing; should it also be applied by investigators to the report, or is that implied by the provision that requires the report to contain only relevant information?
- It is unclear what kind of evidence OCR might believe was directly related to a complaint, but not relevant to the investigators, such that it would not be relied upon (but separately provided to the parties)(why would a recipient not rely on directly related evidence?). If we understand correctly, the parties would be able to make the case at the hearing that this information be considered by the decision-maker, though it was not included in the investigation report. Is that correct, and if so, what if the parties want to make the case that there is evidence not included in the investigation report or the “does not intend to rely on” pile that should be considered by the decision-maker (thus it was determined to be not relevant and/or directly related by investigators). May a party make that case, and if so, how would they know about the evidence to argue for its inclusion if they were not the source of it?
- If the investigator does not testify as a witness, would there be portions of the investigation report that could be disregarded because the investigator was not subject to cross-examination?
Retaliation (Response 6/23/2020)
The regulations make the release of a perpetrator’s identity confidential unless FERPA exceptions apply. Based on the crimes of violence exception, that means that sexual assault, domestic violence, dating violence and stalking outcomes can be released if there is a finding of violation, but there is no exception for sexual harassment. Does that mean that recipients cannot release a finding of sexual harassment through a reference check, because it would be retaliatory to release this confidential information? Assume no state law requires such release.
Investigation Influence on Decision (Response 6/23/2020)
We understand that the decision-maker need to make the finding/determination, but we’re wondering if they can be influenced by the investigators, and if so, how much?
- Can the investigation report make findings that an incident occurred as described by the complainant, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
- Can the investigation report make a determination that an incident occurred as described by the complainant and that it violates policy, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
- (If not) Can the investigation report make non-binding recommendations about the finding and/or determination, as defined above?
- Can the investigator testify about their finding/determination opinions at the hearing? Can they volunteer, or only share if asked?
- Can the investigator and decision-maker have off-line conversations about the investigator’s finding/determination opinions outside the hearing, as long as the decision-maker is not bound to follow them?
Where is the line between the investigation function and the decision-making function is really what we are seeking to understand.
Sanctions (Response 6/23/2020)
Many in the field are interpreting the regs to mean that the decision-maker in the hearing needs to render findings and sanctions. Many recipients have processes divided between finding hearings and sanction hearings, and are wondering if such bifurcation is possible under the the new regs, especially if the sanction hearing decision-maker is not at the findings hearing for purposes of being able to assess credibility. More pointedly, recipients are wondering if faculty discipline processes, in which sanctions are reviewed by many layers of committees, and which can lead to tenure revocation proceedings, all still allowed to be separate and outside of 106.45, or whether recipients somehow need to be figuring out how to combine findings and sanctions into one hearing process under 106.45.
Read More...Training Materials Clarification (Response 6/8/2020)
The recently released Blog Post on Training Materials provided the following, extremely helpful clarification:
- “If a school’s current training materials are copyrighted or otherwise protected as proprietary business information (for example, by an outside consultant), the school still must comply with the Title IX Rule. This may mean that the school has to secure permission from the copyright holder to publish the training materials on the school’s website.
- Nothing in the Title IX Rule abrogates intellectual property rights. If a school is unable to secure permission from a third party to post copyrighted training materials, then the school must create or obtain training materials that can lawfully be posted on the school’s website.”
However, I wanted to ensure that I am advising my staff moving forward and have two brief clarifying questions:
- After 8/14/20, in order to use a third-party training entity, must the Recipient secure permission to post the materials publicly in order to use that training?
- If a third party is unwilling to grant permission to have their materials displayed publicly, may those materials be used as supplemental materials to the training materials created or obtained that are lawfully posted that sufficiently cover the topics in required in Section 106?