Who Can Be the Decision-Maker

At page 30370 of the Preamble to the Title IX regulations, the Department states: “The Department notes that the final regulations leave significant flexibility to recipients, including whether the Title IX Coordinator can also serve as the investigator, whether to use a panel of decision-makers or a single decision-maker, and whether to use the recipient’s own employees or outsource investigative and adjudicative functions to professionals outside the recipient’s employ.” Thus, a decision-maker may be the recipient’s employee or, at the recipient’s discretion, may be a non-employee such as a consultant or contractor. The decision-maker, however, “cannot be the same person(s) as the Title IX Coordinator or the investigator(s).” 34 C.F.R. § 106.45(b)(7). At 30251-30252 of the Preamble to the regulations, the Department states: The final regulations leave recipients flexibility to use their own employees, or to outsource Title IX investigation and adjudication functions, and the Department encourages recipients to pursue alternatives to the inherent difficulties that arise when a recipient’s own employees are expected to perform these functions free from conflicts of interest and bias. The Department notes that several commenters favorably described regional center models that could involve recipients coordinating with each other to outsource Title IX grievance proceedings to experts free from potential conflicts of interest stemming from affiliation with the recipient. The Department declines to require recipients to use outside, unaffiliated Title IX personnel because the Department does not conclude that such prescription is necessary to effectuate the purposes of the final regulations; although recipients may face challenges with respect to ensuring that personnel serve free from conflicts of interest and bias, recipients can comply with the final regulations by using the recipient’s own employees.