Investigation Report Inquiries (Response 8/13/2020)

Investigation Report
Question:
  1. Is it OCR’s expectation that a recipient will cause an investigation report to be transmitted to the decision-maker, and if so, at what point in the process?
  2. The provision on prior sexual history and predisposition seems to apply to the hearing; should it also be applied by investigators to the report, or is that implied by the provision that requires the report to contain only relevant information?
  3. It is unclear what kind of evidence OCR might believe was directly related to a complaint, but not relevant to the investigators, such that it would not be relied upon (but separately provided to the parties)(why would a recipient not rely on directly related evidence?). If we understand correctly, the parties would be able to make the case at the hearing that this information be considered by the decision-maker, though it was not included in the investigation report. Is that correct, and if so, what if the parties want to make the case that there is evidence not included in the investigation report or the “does not intend to rely on” pile that should be considered by the decision-maker (thus it was determined to be not relevant and/or directly related by investigators). May a party make that case, and if so, how would they know about the evidence to argue for its inclusion if they were not the source of it?
  4. If the investigator does not testify as a witness, would there be portions of the investigation report that could be disregarded because the investigator was not subject to cross-examination?

Answer:

The new Title IX Rule requires the recipient to send a copy of the investigative report to the parties and their advisors (if any) at least ten days prior to the date of a hearing (if a hearing is required or otherwise provided) or other time of determination regarding responsibility, but does not prescribe how or when the investigative report should be given to the decision-maker. Because the purpose of this requirement, found at § 106.45(b)(5)(vii), is to ensure that the parties are prepared for a hearing or, if no hearing is required or otherwise provided, that the parties have the opportunity to have their views of the evidence considered by the decision-maker, the decision-maker will need to have the investigative report and the parties’ responses to same, prior to reaching a determination regarding responsibility. See Rule at p. 1036.

The new Title IX Rule, at § 106.45(b)(6)(i)-(ii), states that a complainant’s sexual predisposition is “not relevant,” and that a complainant’s prior sexual behavior is “not relevant” unless the questions or evidence meet one of two limited exceptions. The investigative report required under § 106.45(b)(5)(vii) requires a summary of “relevant” evidence, and therefore evidence of a complainant’s sexual predisposition or prior sexual behavior is not included in the investigative report if such evidence is “not relevant” as provided under § 106.45(b)(6). See Preamble at p. 1017: “. . . all evidence summarized in the investigative report under § 106.45(b)(5)(vii) must be ‘relevant’ such that evidence about a complainant’s sexual predisposition would never be included in the investigative report and evidence about a complainant’s prior sexual behavior would only be included if it meets one of the two narrow exceptions stated in § 106.45(b)(6)(i)-(ii) (deeming all questions and evidence about a complainant’s sexual predisposition ‘not relevant,’ and all questions and evidence about a complainant’s prior sexual behavior ‘not relevant’ with two limited exceptions).”

At pages 814-15 of the Preamble to the Rule (footnotes omitted here), the Department addresses this issue:

The Department disagrees that an investigator should not get to decide what is relevant, and the final regulations give the parties ample opportunity to challenge relevancy determinations. The investigator is obligated to gather evidence directly related to the allegations whether or not the recipient intends to rely on such evidence (for instance, where evidence is directly related to the allegations but the recipient’s investigator does not believe the evidence to be credible and thus does not intend to rely on it). The parties may then inspect and review the evidence directly related to the allegations. The investigator must take into consideration the parties’ responses and then determine what evidence is relevant and summarize the relevant evidence in the investigative report. The parties then have equal opportunity to review the investigative report; if a party disagrees with an investigator’s determination about relevance, the party can make that argument in the party’s written response to the investigative report under § 106.45(b)(5)(vii) and to the decision-maker at any hearing held; either way the decision-maker is obligated to objectively evaluate all relevant evidence and the parties have the opportunity to argue about what is relevant (and about the persuasiveness of relevant evidence). The final regulations also provide the parties equal appeal rights including on the ground of procedural irregularity, which could include a recipient’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. Furthermore, § 106.45(b)(1)(iii) requires the recipient’s investigator and decision-maker to be well-trained to conduct a grievance process compliant with § 106.45 including determining “relevance” within the parameters of the final regulations.

See also Preamble to the Rule at pp. 1018-19 (describing the importance of the parties having access to evidence directly related to the allegations, without that evidence being “screened out” by the investigator as irrelevant, so the parties know of the existence of such evidence and can argue about its relevance in response to the evidence review, and again to the decision-maker).

As to postsecondary institutions, which must hold a live hearing with opportunity for cross-examination pursuant to § 106.45(b)(6)(i), that provision also precludes the decision-maker from relying on the statements of any party or witness who does not “submit to cross-examination at the live hearing.” The new Title IX Rule does not make an exception for the recipient’s investigator; thus, if the investigator does not submit to cross-examination at the live hearing, statements of the investigator cannot be relied on by the decision-maker. However, the Rule does not require the investigative report to contain “statements” or for the investigator to offer their own statements, as defined in the Rule (that is, a person’s intent to make factual assertions; see Preamble at p. 1181). See also Preamble at p. 1031 (“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.”).