ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

An update on the court ruling about the Department of Education’s Title IX Regulations: The Ruling Vacated a Provision Restricting Post Secondary Schools’ Use of Statements by Parties and Witnesses.

Can a postsecondary institution decide not to go forward with a hearing on a formal complaint of sexual harassment if the complainant and respondent both knowingly and voluntarily waive the right to a hearing?

If a complainant or respondent are no longer students, and are not attempting to participate in the recipient’s education programs or activities, do they still have a right to appeal under the Title IX regulations, or does the withdrawal terminate their right to appeal?

Are recipients allowed to place holds (for example, on a transcript, registration, or graduation) on a respondent’s account while a formal complaint process is pending, or is such action considered an impermissible sanction prior to a final determination regarding responsibility?

If the respondent does not find a suitable advisor and only wants to be represented by an attorney, does the postsecondary institution have to pay for the party’s attorney?

If a postsecondary institution must provide a party with an advisor pursuant to 34 C.F.R. § 106.45(b)(6)(i) (i.e., because the party appeared at the live hearing without an advisor of choice), can the provided advisor be an employee of the institution or must such an advisor be independent of the institution?

If a party refuses to participate in cross-examination at the postsecondary level, will the refusal be held against them?

The Title IX regulations do not require elementary and secondary schools to hold live hearings, but must an elementary or secondary school allow the parties to cross-examine other parties and witnesses prior to the decision-maker reaching a determination regarding responsibility?

Do Title IX regulations addressing a complainant’s sexual predisposition and prior sexual behavior govern the inclusion of such information in the investigative 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?