ATIXA announces the OCR OPEN Center Response Repository. ATIXA will update responses from the OCR OPEN Center as we receive them. Responses are listed in order of date starting with most recent. You may also search responses by topic areas at the top of the page. The OCR OPEN Center Blog responses are also linked below the Question/Answer section. If you have received a response from the OPEN Center and would like to add it to this repository, please email ryan.mcdavis@atixa.org.

Search for OPEN Center questions and answers.

Offense Definitions (Response 8/13/2020)

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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Timing (Response 8/13/2020)

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 14th? 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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How Many Questions? (Response 8/13/2020)

The regs are unclear on how much cross-examination is needed. If an advisor asks a party one question only about their statements, are all statements now admissible, or must the advisor question about each statement for that statement to be admitted?

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Directly Related Evidence (Response 8/13/2020)

How does OCR define “directly related” evidence within the regulations?

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Evidence Question (8/13/2020)

Respondent tells her best friend Callie that she really did sexually assault the complainant, Julie, At the hearing, the decision-maker asks Callie about this. Callie confirms it. The decision-maker asks respondent about it, and respondent refuses to answer. The respondent then refuses to be subject to cross-examination, at all. Do we read page 1182 of the preamble (5/6/20 version, p. 1214 of the 5/19/20) to mean that because the respondent refused to answer the question of the decision-maker, the decision-maker is able to rely on the “confession” to the extent it is relevant, and the decision-maker finds Callie credible? The provision directing the decision-maker not to rely on the confession and not draw an inference solely from Respondent’s silence are no longer applicable, because the decision-maker posed the question?  

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K-12 Hearing (Response 8/13/2020)

If a K12 recipient is required by existing law or policy to provide a hearing, do OCR’s rules in 106.45 around cross-examination and consideration of evidence apply to that hearing?

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Sanctions (Response 8/13/2020)

If the decision-maker makes a finding, can another person or panel make sanctioning decisions, if the sanction will depend in any way on the decision-maker’s assessment of credibility, but the sanctioner was not present at the hearing?

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Appeals Equity (Response 8/13/2020)

The Title IX Coordinator uses their discretion to dismiss a Title IX matter during the investigation stage, when the respondent withdraws from the university, over the protest of the complainant. The complainant then appeals the dismissal. Can the respondent, who is no longer a student, and is not attempting to participate in the educational program, participate equitably in the appeal according to the regs or does their withdrawal terminate their rights under the regulations?

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Questions about Questioning (Response 8/13/2020)

ED promised technical assistance. Compliance is ten days out. Policies are being written now, and have to address these questions. How can recipients train hearing decision-makers when the rules are opaque? We have dozens of pending questions with you, but none more pressing than these. We have schools with hearings planned for two weeks from now, and we have no idea how to address the issues of questioning created by the regulations. Without your guidance on these, how can schools possibly offer due process when you have been entirely unclear on how to do so? Please timely respond to these questions. We are trying to get it right, but the conflicting and confusing explanations of the preamble do not offer clarity on the following ten questions. Please respond with meaningful, timely guidance…

  • Does the witness/party have to be asked one question or all relevant questions about all statements made?
  • Who has to ask?
  • If the witness/party answers no questions from advisors, what is the effect?
  • If the witness/party answers no questions from the decision-maker, what is the effect?
  • If the witness/party answers only one question from the advisor, but not all, what is the effect?
  • If the witness/party answers all questions of the advisor but one, what is the effect?
  • If the witness/party answers only one question of the decision-maker, but not all, what is the effect?
  • If the witness/party refuses to answer some/all questions of the advisors, but answers the same questions from the decision-maker, what is the effect?
  • If the witness/party refuses to answer all questions of the advisor, and then refuses to answer all the same questions when posed by the decision-maker, what is the effect?
  • Does it matter what order the witness/party is asked, the advisor first or the decision-maker first?

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Attempted Offenses (Response 8/13/2020)

If a formal complaint alleges attempted sexual assault, would that be covered under 106.30, or would a recipient need to dismiss that complaint? Thank you.

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