By Elizabeth Trayner, Ed.D., ATIXA Advisory Board Member
Process Advisors are critical members of an institution’s Title IX Team (commonly composed of Title IX Coordinator, Deputies, Investigators, Decision-Makers, and Advisors). There are effectively two types of Advisors contemplated by the federal Title IX regulations: the Advisor of Choice and the Appointed Advisor. The Advisor of Choice is selected by the party and can be anyone. The Appointed Advisor is usually a school or university employee or subcontractor. Appointed Advisors are often drawn from the ranks of faculty, staff, recent retirees from the institution, law faculty, law students, a regional consortium of schools, etc. Each party – complainant and respondent – can have one Advisor during the resolution process, though some schools permit more than one per party, and in some situations, schools may be required to allow more than one.
Many schools provide training for Appointed Advisors, which is an important practice even though training is (surprisingly) not required by the federal regulations. Whether the Advisor is appointed or chosen, the federal regulations permit Advisors to participate throughout the Title IX resolution process. The floor set by the federal regulations requires colleges and universities to appoint Advisors during the live hearing phase of the Title IX formal grievance process, if a party wishes to conduct cross-examination, which must be conducted by an Advisor and not the party themselves. In K-12 schools, parties have Advisors of Choice and there is no federal mandate for schools to appoint Advisors. In addition to an Advisor, K-12 students are entitled to have a parent or guardian accompany and advise them in addition to having a Process Advisor. The same may be true for employee parties who have union representatives in accordance with the terms of a collective bargaining agreement. Often, as a result, the party will have both a union representative and a Process Advisor at meetings related to the complaint resolution process. Whenever multiple Advisors are afforded to one party, they should be afforded to all parties.
Attorneys can serve as Advisors in higher education or K-12 settings, but their role is still typically that of an Advisor rather than the full client representation that an attorney might provide in other contexts. There are some exceptions, such as in North Carolina and North Dakota where, per state law, attorney Advisors may fully represent their Advisees as counsel at state institution proceedings. The same would apply to many termination and expulsion hearings for public institution employees or students, where state law affords the right to counsel. Nothing in the federal regulations requires a school or college to pay for an attorney Advisor, though many schools do so routinely now. It should also be noted that under Title IX, the regulations permit Advisors, but not support persons, so the label attached to the role may matter.
Despite the regulatory floor discussed above where Advisors are only involved in the hearing phase of the resolution process, ATIXA recommends exceeding the floor by offering Advisors to each of the parties from the first contact with the Title IX office to shepherd them through the entire process, allowing for rapport and trust to be established early between Advisor and Advisee. Providing an Advisor regardless of whether the complaint falls within Title IX jurisdiction or falls within a separate institutional policy/process, is also recommended to aid in creating equity in institutional response across policy jurisdictions. This may include sexual misconduct allegations that fall outside of Title IX, or complaints that involve acts of discrimination other than those that are sex-based (race, religion, age, disability, etc.) However, with the 2020 addition of the Title IX cross-examination requirement for Advisors (all questions posed on behalf of a party at a live hearing in higher education must be posed by that party’s Advisor and not by the party themselves), institutions may find themselves with fewer internal individuals interested in serving in the Advisor role. Many institutions report that employees are willing to serve as Advisors to Complainants but are more reticent to advise Respondents. Other institutions find that their Advisors are intimidated by the cross-examination requirement or find themselves outmatched by a party on the other side who has an attorney. Thus, a cottage industry of external attorney Advisors has sprung up to meet this need. But engaging external Advisors won’t be feasible or affordable for all institutions. To build a quality internal Advisor pool, consider taking a multi-prong approach.
To gain buy-in from the campus community, consider ways in which you can connect to the mission, vision, or values of the institution. In most cases, you may be able to find ideas that resonate that can be developed into talking points. Is there a motto with special meaning in your community? Find a way to connect Title IX work to that motto. Is the mascot an important part of the campus ethos? Consider ways to capitalize on the mascot’s popularity. Perhaps there’s a compelling message that can be carefully crafted or a catchy phrase that can tie your marketing efforts together, too.
However, even if you have the cleverest marketing team in the world, none of that is going to matter without relationships. As such, you must build relationships with critical stakeholders and members of the campus community. Through building relationships, you may begin to learn what might be a compelling reason for an employee to join the Title IX Team as a Process Advisor. For one person, they may just be looking for a way to give back. Another may be interested in exploring different career options and a Title IX role provides an opportunity to learn valuable skills. Others may want to make sure that no one participating in a Title IX process goes through it alone. In short, staff and faculty members may have a variety of reasons motivating them to join your team, and your job is to figure out what can motivate them to say yes to serving as an Advisor. Often, the ability to offer in-house or external training to Advisors[1] can help to make them feel much more comfortable in taking on the role. Consider as well how you may be able to reciprocate their support of the Title IX process by assisting with their needs such as volunteering at events, reviewing award applications, or judging a student competition. Relationship building can take time and significant investment, but it is well worth it in the end to help build your Process Advisor pool.
ATIXA encourages Title IX coordinators to think broadly when looking for individuals to join their Title IX teams. Relying on hierarchical structures can be a significant barrier to ensuring a process that is both prompt and impartial. Those with the most senior titles often have the least amount of flexible time. You may find some hidden gems in some unexpected places if you look hard enough. Individuals working in residence life, case management, the dean of students office, or student conduct may seem like obvious starting places, but you may find interest in career development, campus recreation, student activities, new student programs, fraternity and sorority life, intercultural programs, or disability support as well. But don’t stop there! Remember that both employees and students need Process Advisors. Consider faculty, athletics staff, the library staff, human resources, EEO, alumni relations, parent programs, development, facilities management, finance, public safety, or graduate programs, too. While it is not an ATIXA-recommended practice, some institutions have even recruited students to serve as peer Advisors.
Additionally, communication with human resources is important to assure that staff members serving as Process Advisors would not conflict with union agreements or contracts that may prevent staff from serving beyond the scope of their job descriptions. Alternatively, human resources may be able to offer incentives for those agreeing to serve as Advisors. Key members of leadership should also be kept in the loop so they can support your recruiting efforts.
Finally, consider meaningful incentives. Will your budget allow for a small stipend? If so, will Advisors receive the stipend as a flat rate, per complaint, or per hour? Could you consider a small token of appreciation for members of your Title IX team? What about a luncheon of some sort? If budgets are an issue, maybe you could offer a letter to the supervisor sharing your appreciation for their service. For faculty, you may want to consider determining whether course release is an option or whether being placed in the Advisor pool could count toward a service component for tenure.
While not a traditional incentive, quality training can also incentivize individuals to volunteer as Process Advisors. Understanding policy, navigating processes, and engaging in critical thinking and clear communication are all vital skills for successful administrators. Although the regulations do not require specific training for Process Advisors, most people want to be given the necessary tools to be effective in their role. Training should be designed to provide Advisors with information on the grievance process and how to provide support throughout the entire proceeding. If time is limited, be sure to provide supplemental resources to aid in their success.[2] While no precedent exists yet, we can foresee that an institutionally provided Advisor who is not competent, or worse, acts negligently, could lead to liability for an institution. Just because training is not federally mandated doesn’t mean it’s not legally necessary. It is!
Additionally, although individuals may only serve in one role in any given complaint, cross-training can aid in improving skills in other roles in the process. Serving as an Advisor can make for a better investigator. Serving as a decision maker can make for a better Advisor. Cross-training also gives the Title IX Coordinator more options when finding competent individuals to serve in other roles in the Title IX process. Lastly, you should consider offering a mock hearing as a training method that cuts across your entire Title IX Team and gives everyone the opportunity to practice putting their skills into action in a safe, risk-free learning environment.
Whatever you do, make sure that your Advisors are familiar with your institution’s applicable policies and procedures. And finally, ensure there is a point of contact for Process Advisors if they have questions. You don’t want them making up answers to questions if they don’t know. While an internal pool will know your institutional culture best, it makes sense to engage with a firm that provides for an external Advisor option, as well, for those times when you need a deeper bench, specialized expertise, or someone who can cover an Advising role that your internal Advisors will not, or cannot, because of conflicts of interest.
Best of luck in your search for Process Advisors!
[1] Such as those offered by ATIXA: https://www.atixa.org/training/title-ix-hearing-advisors/
[2] Such as ATIXA’s Advisor Guide.