Confidentiality of Supportive Measures and Due Process (Response 5/22/2020)

Supportive Measures
Question:

May there be an inherent conflict where supportive measures must be confidential, but the respondent’s defense is that the complainant’s complaint is false, and has only been made to facilitate access to academic supportive measures? Access to information about the measures might show the timeline of academic distress needed to prove this defense. In the event the respondent’s right to due process conflicts with the confidentiality of supportive measures, what does the OPEN Center advise?

Answer:

Section 106.30 (defining “supportive measures”) states (emphasis added): “The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures.” The Rule does not permit a recipient to breach this duty of confidentiality for a reason other than when keeping the supportive measure confidential would “impair the ability” of the recipient “to provide the supportive measure.” In the preamble to the Rule at pages 392-93, for instance, the Department explains:

A recipient’s ability to offer supportive measures to a complainant, or to consider whether to initiate a grievance process against a respondent, will be affected by whether the report disclosed the identity of the complainant or respondent. In order for a recipient to provide supportive measures to a complainant, it is not possible for the complainant to remain anonymous because at least one school official (e.g., the Title IX Coordinator) will need to know the complainant’s identity in order to offer and implement any supportive measures. Section 106.30 defining “supportive measures” directs the recipient to maintain as confidential any supportive measures provided to either a complainant or a respondent, to the extent that maintaining confidentiality does not impair the recipient’s ability to provide the supportive measures. A complainant (or third party) who desires to report sexual harassment without disclosing the complainant’s identity to anyone may do so, but the recipient will be unable to provide supportive measures in response to that report without knowing the complainant’s identity. If a complainant desires supportive measures, the recipient can, and should, keep the complainant’s identity confidential (including from the respondent), unless disclosing the complainant’s identity is necessary to provide supportive measures for the complainant (e.g., where a no-contact order is appropriate and the respondent would need to know the identity of the complainant in order to comply with the no-contact order, or campus security is informed about the no-contact order in order to help enforce its terms). (emphasis added).

If the school conducts a grievance process in response to a formal complaint, § 106.45 does not exempt the recipient from its obligation to keep supportive measures confidential. That expectation is buttressed by the Department’s discussion of revision to the recordkeeping provision, § 106.45(b)(10), at page 1406 of the preamble to the Rule:

In response to commenters’ concerns that this provision giving the parties access to records might contradict the requirement to keep supportive measures confidential, the Department has revised § 106.45(b)(10)(i) to remove the language making records available to parties. Because the parties to a formal complaint receive written notice of the allegations, the evidence directly related to the allegations, the investigative report, and the written determination (as well as having the right to inspect and review the recording or transcript of a live hearing), the Department is persuaded that the parties’ ability to access records relevant to their own case is sufficiently ensured without the risk that making records available to parties under proposed § 106.45(b)(10) would have resulted in disclosure to one party of the supportive measures (or remedies) provided to the other party.

While § 106.45 directs the recipient to objectively evaluate “all relevant evidence – including both inculpatory and exculpatory evidence” (§ 106.45(b)(1)(ii)) and to provide the parties a copy of the “evidence” that is “directly related to the allegations raised in a formal complaint” for review and response (§ 106.45(b)(5)(vi)), any supportive measures provided to the complainant are not “evidence” that is “directly related to the allegations” and the duty to keep supportive measures confidential applies throughout the grievance process.

In your example, the “timeline” that a respondent might wish to establish may consist of establishing when the school received notice of the alleged sexual harassment (e.g., when the incident was reported), combined with the fact that the Rule requires schools “promptly” to offer all complainants supportive measures which, under the Rule, may include academic coursework adjustments, without piercing the confidentiality of supportive measures by disclosing the recipient’s records regarding supportive measures requested by or provided to this complainant.

See also the “Section 106.6(e) FERPA” subsection of the “Clarifying Amendments to Existing Regulations” section of the preamble to the Rule (pages 1442-1508) for discussion of FERPA and the Rule’s requirement to disclose evidence “directly related to the allegations” to both parties during a grievance process.

As an additional note, the Rule does not grant respondents a general “right to due process,” but does give complainants and respondents the specific procedural rights enumerated throughout § 106.45, which rights are rooted in concepts of due process and fundamental fairness for the benefit of complainants, respondents, witnesses, and recipients. See, e.g., Rule at pp. 82-83, FN 203:

E.g., Association of Title IX Administrators (ATIXA), ATIXA Position Statement: Why Colleges Are in the Business of Addressing Sexual Violence 3-4 (Feb. 17, 2017) (acknowledging that due process has been denied in some recipients’ Title IX proceedings but insisting that “Title IX isn’t the reason why due process is being compromised. . . . Due process is at risk because of the small pockets of administrative corruption . . . and because of the inadequate level of training currently afforded to administrators. College administrators need to know more about sufficient due process protections and how to provide these protections in practice.”) (emphasis added). The Department agrees that recipients need to know more about sufficient due process protections and what such protections need to look like in practice, and this belief underlies the Department’s approach to the § 106.45 grievance process which prescribes specific procedural features instead of simply directing recipients to provide due process protections, or be fair, for complainants and respondents. Edward N. Stoner II & John Wesley Lowery, Navigating Past the “Spirit Of Insubordination”: A Twenty-First Century Model Student Conduct Code With a Model Hearing Script, 31 Journal of Coll. & Univ. L. 1, 10-11 (2004) (noting that the trend among colleges and universities has been to put into place written student disciplinary codes but, whether an institution is public or private, a “better practice” is to describe in the written disciplinary code exactly what process will be followed rather than making broad statements about “due process” or “fundamental fairness”). The Department agrees that it is more instructive and effective for the Department to describe what procedures a process must follow, rather than leaving recipients to translate broad concepts like “due process” and “fundamental fairness” into Title IX sexual harassment grievance processes, and unlike the NPRM the final regulations do not reference “due process” but rather prescribe specific procedural features that a grievance process must contain and apply.