By Mikiba W. Morehead, M.A., Ed.D., Consultant, TNG
ATIXA’s members may be familiar with the idea of a “Title IX Review”, though it is never really addressed or discussed in government regulations or guidance. A review is a useful tool for Title IX Coordinators to deploy, either formally or informally, but is set apart from a Title IX grievance resolution process, which is complaint-driven. Instead, a review can be used by Coordinators to look at compliance in a specific institutional area or department. It can be used to look at policies that may be having an inequitable effect. It can also be used to examine overarching complaint trends or outcome trends. Another area where Title IX Coordinators may choose to deploy a Title IX review is in a retrospective look at how a complaint was resolved or whether a complaint should be re-opened at some later date after its resolution. The review can assess whether sex/gender discrimination was appropriately remedied as the process intended.
Can a Title IX Coordinator do that? Yes, if equity demands it. Why would a Title IX Coordinator want to re-open a complaint? Well, perhaps there has been a fraud enacted during the resolution process, where a party or witness withheld or destroyed evidence, and new evidence comes to light that demands a re-examination? Or, undiscovered evidence (or a witness) is uncovered later, whose probity or testimony must be considered for the complaint to be truly and fairly decided. Maybe a bias in adjudication is discovered, well after any appeal window has been exhausted. Or a witness comes forward and admits they were induced to lie during the formal grievance process or intimidated into giving false testimony. Or, proof of the falsity of a complaint is discovered. All of these reasons could give rise to a post-process review. All of this speaks to the goal of getting a complaint outcome right, even months or years later, if necessary.
Why do Title IX Coordinators have this authority? They are the gatekeepers of the grievance process. The 2020 Title IX regulations, institutional policy, and state laws may govern when the gates should open and close. Management of the grievance process does not happen in a vacuum and Title IX Coordinators may face situations that fall within the grey areas of the process where there is limited legal guidance. Let’s use the example of new evidence that is received after an appeal determination and the completion of the grievance process.
Figuring out what to do depends on the answers to three important questions:
- Does the institution still have jurisdiction over the Respondent?
- Would the new evidence significantly impact the outcome of the complaint?
- Does the new evidence have to be considered for equity to result?
A “no” in response to these questions quickly resolves the issue; the gates likely remain closed. However, in situations where the institution does have jurisdiction over the Respondent and the new information, if true, would significantly impact the outcome of the complaint, further consideration is needed. Then, the question is, how best to fix the problem? Sometimes, the best action will be to re-open a Title IX investigation, or conduct a re-hearing, or even to convene a new hearing. Sometimes, a referral for misconduct (such as when evidence was intentionally concealed) to an appropriate conduct process will be more effective, rather than re-opening a Title IX process. In some cases, a conduct complaint might then lead to reconsideration of a Title IX complaint.
While the post-regulatory blueprint for Title IX grievance processes contains clearly defined start-stop points, receiving information post-appeal that indicates an apparent obstruction to the institution’s ability to uphold the principles of fairness, equity, and due process, or a need to remedy the effects of discriminatory, harassing, or retaliatory conduct after the fact may create reasonable circumstances where Title IX Coordinators can and should use their discretion to review and potentially revisit a matter.
When deciding whether a Title IX review is warranted, Title IX Coordinators may consider the following:
- The significance of the new information.
- New complaints against the Respondent regarding the same or similar behavior.
- The presence of other open or active criminal or civil legal proceedings (i.e., open lawsuits or investigations).
- The likelihood that re-opening the grievance process would result in a fair and equitable outcome.
- The likelihood that re-opening the grievance process would remedy the current effects of discrimination, harassment, or retaliation being experienced.
Re-opening or re-investigating a closed Title IX complaint, especially after an appeal determination has been rendered, should not be the default response. Instead, Coordinators should take stock of all the tools available. There may be a remedy within the student code of conduct, employee handbook, or other institutional policies along with a prescribed process that could appropriately address the new information or concerns. If these processes will not suffice, Title IX Coordinators need to have the authority and flexibility to use their discretion to protect against inequity by using the tool of the Title IX review to explore, investigate, re-open, and/or reconsider an outcome within the Title IX grievance process even well after all appeals have been exhausted.
Contact us at inquiry@tngconsulting.com to learn more about how ATIXA and TNG can support your organization with a Title IX review.