ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

Do the new Title IX regulations allow universities to sanction/discipline Respondents who are employees or faculty using procedures that are different from the procedures used to sanction/discipline Respondents who are students?

In cases against Student Respondents, the Adjudicator/Hearing Officer would determine the appropriate sanction/discipline;  the Adjudicator/Hearing Officer would issue a written decision simultaneously to both parties that contains the sanction/discipline and rationale, along with notice of the parties 3 grounds for appeal.  In cases against Employee or Faculty Respondents, the Adjudicator/Hearing Officer would issue a written decision simultaneously to both parties along with notice of their 3 grounds for appeal, but no sanction would be included.

After the appeal is completed, the University would determine appropriate sanctions for the staff and faculty respondents.  The respondents would then have the right to grieve those sanctions pursuant to State law grievance rights, collective bargaining agreements or faculty grievance rights.  The complainant (student, staff or faculty) would NOT have a right to participate in any staff or faculty grievance process challenging the sanction/discipline.

Do the new Title IX regulations allow universities to use attorneys who advise the University to perform legal sufficiency reviews, and at what points, (a) prior to issuance of the draft investigation report, (b) prior to issuance of the final investigation report, (c) prior to issuing a written decision after adjudication, or (d) prior to issuing the final decision after appeal?

If a party’s advisor is truly unruly or disruptive to proceedings, and refuses to comply with lawful boundaries the school has placed on their role, what recourse does the school have? May the school remove a party’s advisor for such disruption, or does that deprive a party of their advisor of choice? May a school impose discipline on a party for the actions of their advisor, if that advisor’s conduct violates the school’s code of conduct? May the school impose discipline on a party for their failure to control the disruptive actions of their advisor? If an advisor can be removed by a school, does the party then get to choose another advisor, or does the school appoint one at that point?

Suppose that a complainant files a formal complaint (let’s say online), but then realizes she cannot be anonymous and asks to withdraw the complaint. Can she? Or must she request a dismissal from the Title IX office?

Do the new Title IX regulations prohibit institutions of higher education from permitting employees and faculty members to grieve sanctions issued in connection with Title IX matters, through an employee or faculty grievance process, where complainants are not required to be involved and the Title IX procedures do not allow parties to appeal sanctions?

For context, many institutions of higher education have employee grievance processes for challenging disciplinary actions through a multi-step process, that may ultimately lead to the matter being addressed in an external administrative hearing office; faculty discipline is often addressed through a process set forth in faculty by-laws.  In both of those scenarios, any complaining party that may have prompted action being taken against the respondent employee or faculty member, would not be involved in the grievance or bylaw process. Read More...

The preamble to the regulations seems to indicate that athletics staff would not be able to restrict a player who is a respondent, based on allegations, unless there is an emergency removal or a process that fully complies with 106.45. Is that correct? Does that apply to any restrictions on the student-athlete that would be a penalty? What is the athlete is also charged with collateral misconduct arising from the incident, such as alcohol or drug use. Can the athletics program restrict the athlete for those behaviors but not the 106.30 offenses? Read More...

The Department of Education’s Office for Civil Rights (OCR) has issued a new technical assistance document entitled Questions and Answers Regarding the Department’s Final Title IX Rule to support education institutions with meeting their obligations under the new Rule, which became effective on August 14, 2020.  The content of the document is derived from questions posed to OCR’s Center for Outreach, Prevention, Education, and Nondiscrimination (OPEN Center).

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If an appeal is offered to a respondent for sanctions do we have to offer that same right to the Complainant?

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What should recipients do with cases where responsibility has been found already, but the matter is either in the appeals or sanctioning phase and still will be when the regs become effective on August 14^th? Are recipients required to roll everything back and hold a 106.45 hearing before they are able to sanction a respondent or can they continue with the current process for cases that have already established a finding?

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This question regards the per se assumption that OCR is making with respect to domestic violence, dating violence, and stalking as forms of sexual harassment. All three of these behaviors, while rare, can have manifestations that are not based on sex. Does OCR still expect all manifestations of these behaviors to be addressed under Title IX even if a particular incident manifestly is not sex-based? Further, is it OCR’s position that grabbing someone on the buttocks, while could be a forcible fondling, is a form of sex discrimination?

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