K-12 Written Questioning (Response 8/13/2020)

K12
Question:

For recipients that are elementary and secondary schools, the regulations provide that before reaching a determination regarding responsibility for sexual harassment, the decision-maker “must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness” and “provide each party with the answers.” 

  1. Do the regulations prohibit the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions? 
  2. Even if the answer to Question 1 is no, do the regulations permit a school district to adopt a policy prohibiting the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions?
  3. Do the regulations permit a school district to adopt a code of conduct requiring students to answer written, relevant questions of a party to the process of making the findings of fact supporting a decision-maker’s determination regarding responsibility for sexual harassment?  If so, do the regulations permit a school district to discipline a student for violating such a code of conduct without engaging in the processes prescribed by 106.45?
  4. May a decision-maker draw an inference about the determination regarding a party’s responsibility based on a party’s refusal to answer written, relevant questions?
  5. May a decision-maker draw an inference about the determination regarding a party’s responsibility based solely on a party’s refusal to answer written, relevant questions?

Answer:

Outside the context of a postsecondary institution, the new Title IX Rule contains no express prohibition on a decision-maker relying on a party’s or witness’s statements when the party or witness refuses to answer the written, relevant questions provided for under § 106.45(b)(6)(ii).

Even outside the postsecondary institution context, decision-makers must still be cognizant of the requirements in § 106.45 that apply to all recipients, including 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).

The new Title IX Rule requires decision-makers to objectively evaluate all relevant evidence. § 106.45(b)(1)(ii). Thus, a decision-maker must consider all relevant evidence (inculpatory and exculpatory), unless the Rule prohibits consideration of such evidence (for example, the Rule prohibits use or consideration of a party’s treatment records without the party’s prior written consent, regardless of whether the records constitute or contain relevant evidence). See § 106.45(b)(5)(i).

The new Title IX Rule does not require parties to answer the written, relevant questions provided for in § 106.45(b)(6)(ii), and the Rule prohibits a recipient from threatening, coercing, intimidating, or discriminating against a party for exercising rights under Title IX, including a choice not to participate in a grievance process. § 106.71(a). Thus, a recipient’s policy that purports to “require” parties to answer the written questions posed under § 106.45(b)(6)(ii) risks a determination that such a policy constitutes unlawful retaliation.

The new Title IX Rule does not expressly direct a decision-maker to refrain from drawing inferences about the determination regarding responsibility based on a party’s or witness’s refusal to answer the written, relevant questions provided for under § 106.45(b)(6)(ii).

Even outside the postsecondary institution context, decision-makers must still be cognizant of the requirements of § 106.45 that apply to all recipients, including 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).

The new Title IX Rule does not expressly direct a decision-maker to refrain from drawing inferences about the determination regarding responsibility based on a party’s or witness’s refusal to answer the written, relevant questions provided for under § 106.45(b)(6)(ii).

Even outside the postsecondary institution context, decision-makers must still be cognizant of the requirements of § 106.45 that apply to all recipients, including 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).