Page 19 - BusinessWest August 19, 2024

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Title IX
Continued from page 18
Act offenses for non-students. This informal process is less prescriptive and gives the inves- tigator additional flexibility in facilitating the investigation.
6. Is the institution using a single-investiga- tor model, and does it accomplish the school’s objectives? The single-investigator model allows the investigator to also act as the decision maker in the Title IX case. This means that they are not only conducting all of the interviews and col- lecting all of the evidence, but also assessing the credibility of all parties and rendering a decision as to whether a Title IX violation occurred.
First, institutions should confirm that the single-investigator model is permitted in their jurisdiction, as not all courts have allowed it. The single-investigator model has been critiqued for potential pitfalls in providing due process, but it also often has the benefit of efficiency and can be helpful given that the investigator is generally most familiar with all facets of the case.
Second, if the school’s jurisdiction does allow for use of the single-investigator model, then there are a number of questions to consider, including whether the institution wants to use said model, whether it will conduct investigations in-house or outsource, and whether parties will be permitted to pose questions to the decision maker.
7. Has the institution decided to use live hearings? Is that method working for the needs of the school? Live hearings, which were once required, are now permitted but no longer required. Schools can evaluate the use of a live
“Overall, as institutions ensure compliance with the new regulations, it would not be surprising to see schools continue to revise policies based on how the new procedures pan out in practice.”
hearing on a case-by-case basis. If a school has decided to use live hearings, has a decision been made on:
• What criteria will be used to determine whether to do so for each case?
• Whether live cross-examination will be permitted?
• Whether the school will provide an advisor to parties who do not have one?
Schools should keep in mind that, if they choose not to conduct live hearings, they still must allow parties to propose relevant and per- missible questions to the other side and that investigators must record party and witness inter- views, subsequently providing each party with
an audio or audiovisual recording or transcript
of said interviews with time to propose follow-up questions.
If schools decide to pivot away from the use of live hearings, evaluate whether the new process is working. Is the process more or less effective
and/or time-consuming than the use of a live hearing? Does the new process affect the deci- sion maker’s ability to reach an equitable result? It is common for new policies to include a bit of trial and error.
Overall, as institutions ensure compliance with the new regulations, it would not be sur- prising to see schools continue to revise policies based on how the new procedures pan out in practice. This is especially true given that the new regulations give schools more autonomy in deciding how to manage grievance procedures and related policies despite expanding the appli- cable scope of conduct.
With the new school year underway, Title IX teams should keep an eye out for how their cho- sen policies work in practice and consider any needed changes as the school year progresses. BW
Kathleen E. Dion is chair of the education industry team at Robinson+Cole. She represents private schools, colleges, and universities in a variety of civil matters,
such as tuition disputes, allegations of staff misconduct, and Title IX matters. Sabrina Galli is a member of Robinson+Cole’s business litigation group and education industry team. She represents corporate clients in general commercial litigation matters involving breach of contract and business torts, as well as
in arbitrations, mediations, and settlement negotiations.
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