A Tip of the Week by Brett A. Sokolow, J.D.
By now, you’ve likely settled into many sessions of reading the 2024 Regulations and are digesting what you’ve read and learned. Let’s zoom into a question we’re sure you’ve been pondering – who can and should serve as Decision-makers (DM) in Title IX complaints? The Title IX grievance procedures require a decision-making step. Based on our reading, we think there are three options, depending on your jurisdiction, the nature of the complaint, and the role of the parties. We encourage choosing one resolution model, rather than having more than one, and informal resolution can be used with any of these approaches. The three models are the Single Investigator Model (SIM), the ATIXA Model, and the Live Hearing Model. Here are brief discussions of each.
Single Investigator Model (SIM)
Option one is what the Department of Education’s Office for Civil Rights (OCR) calls the Single-Investigator Model (SIM). This model gets a lot of attention, and ATIXA is on record expressing our concerns about SIM—not just as lawyers and consultants but also as practitioners. First, we don’t think it is a model that schools should consider best practice. It’s more of a default practice and was viewed as so insufficient that it led to the Trump administration abolishing it with the 2020 Regulations. ATIXA’s concern is that courts have, and will again, view SIM with skepticism in the postsecondary setting. Now, the Biden administration has opened the door to its return with the 2024 Regulations. While SIM is permitted, OCR has not endorsed it. Certainly, a public college or university should only consider this if it is prepared to litigate to determine if the courts agree with OCR that the SIM provides sufficient due process and procedural safeguards. As with most Title IX decision points, ATIXA encourages our members not to aim for the floor but to reach for the ceiling and embrace best practices.
Public K-12 schools and districts will likely make some use of SIM; but just because OCR says SIM is permissible, fair, and equitable does not mean judges will see it that way. K-12 schools that use SIM should be prepared to defend it by arguing a small complaint volume, limited resources, and any other specific circumstances that show why they could not adopt a more robust model. They’ll also need to significantly improve training for their Investigators, as most K-12 Investigators are not yet equipped for this added decision-making responsibility. Overlap between the Investigator role and the Title IX Coordinator (TIXC) could help, but it is not a panacea. It usually results in the TIXC being limited in their ability to accomplish their other Title IX compliance imperatives and removes their ability to facilitate an informal resolution. They wind up being full-time case managers, essentially. K-12 schools like SIM because it mirrors their other disciplinary processes and is faster, but faster does not necessarily yield more accurate or equitable results. If nothing else, we implore any adopter to avoid SIM in its purest form—one that offers no appeal. In fact, we’d argue that adding an appeal to SIM means it is no longer SIM at all.[1] SIM exists only where one person serves as Investigator and DM, making a single person the administrative equivalent of investigator, judge, and jury. And, if you adopt SIM with an appeal, we suggest that you offer a robust appeal process that expands upon the three appeal grounds identified in the regulations to permit substantive appeals of both findings and sanctions (for separation-level offenses) to potentially cure any errors or tunnel vision that occurred during the investigation. Checks and balances are critical to a process of integrity that will withstand litigation challenges.
We’re not recommending SIM to any recipient. SIM with an appeal could work for K-12, especially with a robust set of appeal grounds, but it still makes us a bit nervous. If used in K-12, don’t forget that a Goss hearing[2] will still be required for some suspension- and expulsion-level cases, which means you’re not really using SIM at all. We’d banish the term, even as OCR has embraced it. So, if we’re tepid on SIM, at best, what are your other options?
Most schools will use some form of a hand-off model, for lack of a better term. In the hand-off, there is a clearer separation and delineation between the investigation function and the decision-making step in the resolution process. The 2020 Regulations required this separate DM function, though that hand-off required a live hearing in postsecondary schools, which is not the case with the 2024 Regulations. The hand-off approach uses a DM who is not the Investigator—it could be any trained DM, an external expert like ours at The FAIR Center, or even the TIXC. We like the hand-off because we think that our communities and courts have come to expect it. The hand-off puts at least one more set of eyes on the complaint before an outcome is reached, and we think there is value in checks and balances, meaning the DM can never be just a rubber stamp and must separately evaluate the evidence. Thus, the ATIXA Model described below embraces the hand-off without resorting to the formalities or adversarial nature of a live hearing model.
The ATIXA Model
The ATIXA Model is positioned between the SIM and the live hearing model, in terms of formality. Like SIM, it is investigation-centric but includes the advantage of a hand-off to a separate DM or panel. It ensures compliance with §§ 106.45 and 106.46 while aiding promptness by placing the responsibility for questioning largely on the Investigator(s). We think this model closely approximates the fact-gathering and credibility assessments of live hearings without the adversarial and confrontational aspects of live hearings that are often off-putting to the parties.
SIM has value because it puts the decision in the hands of the Investigator, who may know the complaint best. However, the downside to SIM is that the Investigator knows the complaint so well that it could compromise their objectivity. The ATIXA Model incorporates the value of the Investigator’s intimate knowledge of the facts while largely neutralizing the lack of objectivity that can result. Because there is a hand-off to a separate decision-making step of the resolution process, the Investigator has no formal role in the outcome. The DM can be the TIXC serving in that role, or it can be another trained internal or external DM, or the DM and TIXC can work together as a panel, or a panel can be composed of three independent DMs. We encourage incorporating the TIXC or a deputy as a DM because we think the TIXC is likely the best-trained Title IX person at any school. Still, our concerns about TIXCs as DMs lie mostly with the potential for conflicts with other roles the TIXC has (which can be managed with recusals or referrals to other trained designees) and with bandwidth. A TIXC doing their job well may not have the time to also serve as a DM unless they have an expansive team behind them. Each DM engagement we serve with our clients consumes 20-40 hours. That’s not a trivial amount of time for a busy TIXC in a high-volume office.
ATIXA’s version of this approach innovates within the § 106.46 process, which involves determining whether an extended back-and-forth Q&A with the parties, once the investigation is complete, is managed as part of the decision-making step or as part of the investigation. ATIXA’s approach front-loads this exchange into the investigation, rather than leaving it to the DM exclusively. The regulations contemplate this possibility[3], and we prefer this more collaborative approach between Investigator and DM because we are concerned that the Q&A exchanges to assess credibility will extend the process interminably. Without appropriate controls and timelines, it could lead to endless rounds of questions and comments. Here is how ATIXA envisions our model working, and this is reflected in our process choices for our 1P1P model (to be published and made available to ATIXA members in early June).
Upon intake, the TIXC assigns the complaint to the Investigator, who may roadmap and strategize it collaboratively with the TIXC. Then, as the Investigator obtains evidence and testimony, they update the TIXC regularly and work together to ensure that the investigation is on track. They can help problem-solve, address any impediments the Investigator encounters, suggest questions/witnesses, and ensure the investigation is thorough. Once the Investigator completes initial evidence collection and writes a report (of course, the Investigator writes reports because who wants to sift through a lump of disorganized evidence?), the TIXC reviews the report and provides comments and feedback. The TIXC (or designee) and the Investigator work together on any gaps and follow-up questions that need to be posed so that the DM(s) ultimately has enough relevant evidence and information related to credibility to make the determination. Legal review can also occur at this time or upon the finalization of the investigation report (we prefer it just prior to finalization).
Then, the Investigator collects feedback from the parties/advisors during a ten-day review and comment period, to address any corrections, additional witnesses, or questions they still believe need to be posed. In the ATIXA Model, the DM has the same review and comment opportunity as the parties, to ensure that the investigation addresses all the questions they need answered, and to address any gaps that they may have identified. At this stage in the process, all questions suggested by the parties/advisors are subject to review by the DM to ensure they are relevant and permissible and will give the DM the insights they need to decide credibility issues.
After receiving all reviews, comments, and questions as approved by the DM, the Investigator then goes back to the parties and witnesses with any remaining questions and updates the report. Part of this process thus incorporates the feedback step of § 106.46, in which the parties are entitled to recordings or transcripts of the follow-up interviews (conducted by the Investigator) to see if any remaining questions are outstanding. After review of the recording/transcript, one final round of questions (as approved by the DM) can be posed by the parties/advisors to any parties/witnesses. Once all questions are addressed by witnesses and parties, the Investigator incorporates answers and any remaining review/comment, finalizes the report, and it is then circulated to all parties/advisors and the DM (legal review can occur just prior to this finalization). There are no recommendations made at this phase of the process, but Investigator recommendations may become known once the decision-making begins if the DM(s) decides to interact with the Investigator in the decision-making phase.
To summarize how this process cascades, we describe a five-step approach, as follows:
- Investigator provides parties and DM(s) with draft report
- Parties review and submit comments/additional questions to Investigator for review by DM(s)
- DM reviews comments/questions and approves or denies, and adds their own questions (from single DM or full panel, if a panel is used)
- DM sends their comments/additional questions and approved party feedback/questions to Investigator
- Investigator incorporates responses, follows up with parties/witnesses, provides recordings/transcriptions, does one more round of follow-up (again with DM approval of any further questions, for relevance and permissibility), and finalizes report
The TIXC and DM then move into the decision-making phase of the process, where they sit down with the report and then reach a joint decision on the outcome. As noted above, some variations of this approach include the Investigator as a panelist with a vote, using a single DM, or comprising a panel of the TIXC and two DMs, or three DMs and no TIXC. The panel deliberates and summarizes its decision into a rationale letter and sends it to the parties/advisors simultaneously, subject to appeal. They can also decide to send the report back to the Investigator, if there is a need to re-open the investigation. In most cases, the Investigator will pose any additional questions, not the DM panel, though the panel can decide to meet with or question any party or witnesses if they wish to. If so, they would need to record/transcribe those meetings and provide the recording/transcription to the parties for additional feedback. Mostly, we don’t find that the DM step involves DM interaction with the parties if the previous steps have been managed well because all necessary evidence and answers to questions are already in the report.[4] The DM or panel can then make any necessary findings and final determinations based on the preponderance of the evidence.
The ATIXA Model is effective because it is collaborative. It’s appealing because it’s less adversarial and less formal, yet it’s also interactive and iterative. All parties are heard and have multiple opportunities to provide input. While the process relies more on the Investigator, it keeps key stakeholders at the table to support each other, challenge each other, and deeply evaluate the evidence over time. As a hybrid of the SIM and live hearing models, it embraces the qualities of each model that are valuable while neutralizing the most concerning downsides. The DM/panel has the option to glean the valuable insights the Investigator may have based on weeks or months of interacting with the parties, witnesses, and evidence, but there are still objective DM(s) who are not rubber stamping the Investigator’s inclinations and will interrogate them independently.
Another way to look at this model is as an evolving non-adversarial resolution with gathering and deciding phases, rather than as distinct investigation and decision-making processes. The ATIXA Model offers the quality and quantity of interaction with the parties and witnesses necessary to produce reliable, defensible complaint determinations.
Live Hearing Model
Some institutions will retain the live hearing model, similar to the 2020 Regulations § 106.45. As a confrontational and adversarial model, it’s less than ideal, but some schools will continue with it, either because of law, culture, or inertia—and the 2024 Regulations permit that. Some will use the variation of the Live Hearing with Advisor-led cross-examination,[5] and others will use a Live Hearing with DM-led questioning.[6] In either variation, each party and the DM must have the opportunity to pose their questions at the hearing.
While we don’t hate the live hearing model as a means of resolving Title IX complaints, we’re not in love with it, either. The downsides are significant. We think it causes a significant chilling effect on reporting and persistence of complainants through the process. It is also pretty slow, risking a non-prompt response. And, having done hundreds of live hearings under the 2020 model as DMs, we’re utterly unconvinced that it produces more or better evidence than non-hearing models, or that cross-examination under the 2020 live hearing model surfaces decisive evidence better than other models. That’s why, unless you are required by law in your jurisdiction to provide live hearings, we hope that most institutions will adopt the ATIXA Model as the default approach.
Conclusion
While the three approaches outlined above put more pressure and emphasis on the role of Investigators, ATIXA has updated all of our Investigator certifications to prep your Investigators for the more prominent role they are likely to have in Title IX resolutions after the regulations take effect on August 1, 2024.
[1] Complaints of sex-based harassment in postsecondary schools are required to offer an appeal when one or more of the parties is a student under § 106.46. Appeals are optional for K-12 schools and postsecondary schools when complaints do not involve student parties OR when the allegations are sex discrimination other than sex-based harassment. So, even OCR agrees that a true SIM isn’t appropriate, at least in some situations.
[2] Goss v. Lopez, 419 U.S. 565 (1975), is a U.S. Supreme Court case that held that a public school must conduct a hearing before subjecting a student to suspension of longer than 10 days.
[3] § 106.46(f)(1)(i)(B)
[4] ATIXA has used essentially this model as our Process B in our 1P2P model since 2020.
[5] Probably the logical default approach for public colleges in Kentucky, Michigan, Ohio, and Tennessee. Arguably also applicable to public colleges in California and Wisconsin.
[6] Probably the logical model for public colleges in Arkansas, Iowa, Louisiana, Massachusetts, Maine, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Pennsylvania, Puerto Rico, Rhode Island, and South Dakota, as well as private colleges in Pennsylvania. Arguably also applicable to public colleges in California and Wisconsin.