Filed Under: Investigation Report
After the parties have been given the opportunity to respond to the investigative report in compliance with 34 C.F.R. § 106.45(b)(5)(vii), is the final investigative report admitted as evidence for consideration by the decision-maker? If so, are the written comments that the parties made in response to the investigative report also admitted as evidence?
The investigative report must contain a summary of relevant evidence gathered during the investigation of a formal complaint of sexual harassment, and prior to a hearing (if a hearing is required or otherwise provided) or other time of determination regarding responsibility, the recipient 8 must send the investigative report to the parties and their advisors of choice (if any) with an opportunity for the parties to respond to the investigative report. 34 C.F.R. § 106.45(b)(5)(vii). The Title IX regulations do not deem the investigative report itself, or a party’s written response to it, as relevant evidence that a decision-maker must consider, and the decision-maker has an independent obligation to evaluate the relevance of available evidence, including evidence summarized in the investigative report, and to consider all other relevant evidence. The decision-maker may not, however, consider evidence that the regulations preclude the decision-maker from considering. (For instance, the regulations preclude a recipient from using in a Title IX grievance process information protected by a legally recognized privilege, a party’s treatment records, or (as to postsecondary institutions) a party or witness’s statements, unless the party or witness has submitted to cross-examination. 34 C.F.R. §§ 106.45(b)(1)(x), 106.45(b)(5), 106.45(b)(6)(i).)