Inferences & Deference (Response 8/13/2020)
The regs are clear that no inferences are to be drawn solely from non-participation of a witness or party, but the regulations also say OCR will not will not second-guess the recipient’s determination regarding responsibility, which may rely on an improperly drawn inference. How does OCR reconcile these seemly oppositional provisions?
These provisions are fully consistent with one another. The new Title IX Rule explains at length the purpose and impact of § 106.44(b)(2), under which “The Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence.” In the Preamble to the Rule at pages 710-20, the Department explains that § 106.44(b)(2) in no way precludes the Department from enforcing all provisions of § 106.45. In your example, if the recipient draws an impermissible inference based on a party’s absence from the live hearing, the Department may find the recipient in violation of § 106.45, including potentially setting aside the recipient’s determination regarding responsibility. See, e.g., Preamble to the Rule at p. 713 (“Refraining from second guessing the determination reached by a recipient’s decision-maker solely because the evidence could have been weighed differently does not prevent OCR from identifying and correcting any violations the recipient may have committed during the Title IX grievance process.”) (emphasis added).