By: Katherine Weathers, J.D., Affiliated Consultant, TNG Consulting
I recently had the opportunity to be the decision-maker in two cases at a private university in California. The cases were factually and procedurally complex, which taught me some valuable lessons that I thought were worth sharing.
A female employee filed a complaint with the university’s Title IX office alleging that a former student (male) sexually assaulted her six months prior. The complainant and respondent were both students at the university at the time of the alleged incident. It was not until after the incident that the complainant graduated and became a university employee. They both described their relationship as “friends with benefits.” The alleged incident occurred off-campus at a non-sanctioned fraternity event and, therefore, fell outside the scope of the 2020 Title IX Regulations. Thus, the respondent was charged with sexual harassment under California state law. Approximately a month after the complaint was received by the Title IX office, the respondent submitted a counter-complaint alleging that the complainant sexually assaulted him in a separate incident. He alleged that she fondled his genitals without his consent one evening in his dorm room in an attempt to engage in sexual intercourse with him. Because his allegation occurred on campus, his complaint fell within the scope of Title IX. She was charged with violations of both Title IX and California state law.
Considering that the complaints involved the same parties, were submitted close in time to one another, were investigated by the same investigating officer, and contained overlapping information, it seemed reasonable to consider holding one hearing to adjudicate both complaints. During careful review of the university’s Title IX policy and California’s sexual harassment law, however, it was discovered that the procedures required by both differed in one significant respect. Specifically, California state law prohibits advisors from asking questions of the parties and witnesses in a hearing. Only the decision-maker may ask questions under those circumstances. Because we had one respondent charged with only a violation of California state law, thereby falling within that restriction, and another respondent charged with both federal and state law violations, it was necessary to determine the best way to comply with both sets of procedures while also ensuring clarity and fairness to the parties and their advisors.
Considering the options, I decided that holding two separate hearings back-to-back would minimize confusion, maintain compliance with both laws, and provide the greatest amount of efficiency. The pre-hearing meetings provided an opportunity to explain to the parties the different procedures that would be followed in each of the two hearings and the rationale for doing so. The parties were also given the opportunity to submit questions they would like to have asked on their behalf during the hearing governed by California state law.
In addition, a second, somewhat obscure issue also arose from the requirements in California’s law. Because the parties were involved in an ongoing sexual relationship at the time both incidents occurred, evidence to show how the parties communicated consent in prior and subsequent consensual sexual relations was deemed relevant and would be allowed to be presented. During the pre-hearing meetings, I shared with the parties that this information would be allowed to be presented. California state law required that I also provide notice in writing to the parties that such evidence would be allowed.
It was unusual, to say the least, to conduct the hearings in this way. We had the first hearing, governed by Title IX regulations, during which the advisors posed questions to parties and witnesses. At this hearing, I considered both Title IX and California-based charges (charged as collateral misconduct, thus addressed in the same process). Then, we took a break and reconvened the second “California” hearing with the same parties, this time in reversed roles. At this hearing, all questions were submitted by the parties/advisors through me, as decision-maker, per California law, and I ruled on their relevance and posed them to the parties and witnesses. This worked, even if it was a bit wonky in practice. It proved to be relatively efficient and allowed me to see each allegation clearly and make a determination as to each respondent.
This experience reminded me that we often focus and rely on Title IX’s procedures and think less about our state laws, even though for many schools, a large percentage of complaints fall outside of Title IX’s scope under the 2020 Regulations. Here, we had one hearing under federal standards with California law as an overlay. In the other hearing, California law applied, and federal standards did not. Same parties. Same school. Same types of conduct. Two very different approaches needed. Now, this is even more complicated for some schools, as both 2020 and 2024 Title IX Regulations may apply, depending on when the conduct occurred. In this case, had I consolidated the two investigations into one hearing, believing I was demonstrating an efficient use of time, and utilized Title IX’s procedures for the hearing, the whole hearing could have been overturned on appeal for failing to follow the appropriate procedures. In addition, an attorney filling the role of advisor won’t hesitate to jump on a misstep like a failure to inform the parties in writing that their sexual history would be allowed in the hearing. The extra time and effort upfront in not only reviewing policy and the regulations, but also going online and reading the applicable state laws can help prevent significant headaches (and embarrassment) later, especially in states with often confusing, overlapping, or even conflicting standards vis-à-vis the federal standards.