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?
The new Title IX Rule does not require a recipient that is not a postsecondary institution to hold a hearing (live or otherwise). § 106.45(b)(6)(ii). If a non-postsecondary institution recipient, such as a K-12 school, chooses to hold a hearing, the provisions of the Rule that apply solely to postsecondary institutions do not apply to such a hearing. The Department addressed this issue in the Preamble at page 1240-41 of the Preamble:
If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment. The Department notes that § 106.45(b) requires any rules adopted by a recipient for use in a Title IX grievance process, other than those required under § 106.45, must apply equally to both parties. Within that restriction, elementary and secondary school recipients retain discretion to decide how to conduct hearings if a recipient selects that option.
Note also that recipients must conduct their investigations and any hearings (required or otherwise provided) in a manner consistent with other provisions of 106.45. That includes, for instance, the requirement that recipients “[p]rovide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.” 106.45(b)(5)(ii). Similarly, recipients owe a duty to maintain grievance procedures that “[r]equire an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.” See § 106.45(b)(1)(ii). And a recipient cannot retaliate against a party or witness who exercises or declines to exercise their option to participate in a Title IX grievance process. See § 106.71.