Findings (Response 8/13/2020)
Should the investigator avoid making a recommendation in their report as to whether policy was violated and/or avoid making a finding? Or is it enough that any finding or recommendation by the investigator is non-binding on the decision-maker? If the answer is that investigators should avoid making a finding or recommendation, but at the hearing the investigator somehow states a finding or recommendation, how should a recipient handle that?
The new Title IX Rule does not require or prohibit an investigator from making a recommendation with respect to a determination regarding responsibility. In the Preamble to the Rule at page 1031, the Department stated, “The Department does not wish to prohibit the investigator from including recommended findings or conclusions in the investigative report. However, the decision-maker is under an independent obligation to objectively evaluate relevant evidence, and thus cannot simply defer to recommendations made by the investigator in the investigative report.”