Hiring and Training Competent Title IX Hearing Officers.

• Author: Trachtenberg, Ben

TABLE OF CONTENTS ABSTRACT 261 TABLE OF CONTENTS 263 I. INTRODUCTION 264 II. MAGIC GRITS AND THE CHALLENGE OF RELEVANCE 266 A. Probative Evidence: Making Things More (or Less) Likely to Be True 270 B. Material Evidence: Shedding Light on Something that Matters 271 C. Grits Revisited 272 III. CAN THIS DIFFICULT TASK BE AVOIDED? 273 A. Hire Someone Who Already Knows What She Is Doing 273 1. Local Lawyers, Retired Judges, and Similar Outside Experts 276 2. Firms that Specialize in Dispute Resolution or Title IX Consulting 277 3. Some Concerns about External Hearing Officers 278 B. Train a Small Cadre of Employees to Preside at Several Hearings 279 C. Use External Trainers 280 D. Use Juries to Separate Hearing Management from Decisions about Results 281 E. Words of Caution About Using Hearing Officers Who Do Not Decide the Merits 283 IV. PROPER EXCLUSION OF RELEVANT EVIDENCE 284 A. The "Rape Shield" in the Revised Title IX Regulation 285 B. Evidentiary Privileges 288 C. Evidence that Might Be Inadmissible in Real Courts--"Goes to Weight" 290 V. A BRIEF LOOK AT THE BIGGER PICTURE 292 A. Why Quality Hearings Are So Important 292 B. Special Considerations in an Age of Virtual Hearings 294 VI. CONCLUSION 296 I. INTRODUCTION

Risks abound when a college or university conducts a hearing about sexual assault, misconduct, or harassment. For the complainant (sometimes known as the "alleged victim"), the process can add trauma to an already terrible experience. For the respondent (sometimes known as the "accused" or the "alleged perpetrator"), the result may be suspension or expulsion from school. For the institution, a botched hearing can anger stakeholders such as students and parents, and it can also generate litigation. An especially bad hearing process may inspire investigations and enforcement actions by the U.S. Department of Education ("the Department"). Hearings that fail to uncover genuine misconduct risk leaving victims without justice. Hearings that find nonexistent misconduct risk punishing the innocent. Poorly run hearings risk causing needless pain to participants, regardless of the ultimate outcome. For all these reasons, colleges and universities need competent hearing officers, and these officers will be difficult to find because of new federal law.

In its May 2020 regulations related to Title IX, (1) the Department ordered higher education institutions to "to require investigators and decision-makers to be trained on issues of relevance, including how to apply... rape shield provisions." (2) This mandate may prove more difficult than it first appears. Law students enrolled in evidence classes, who usually have at least one year of postgraduate legal education, often struggle to apply legal definitions of relevance. (3) "Rape shield" provisions, such as those codified in Federal Rule of Evidence 412 and similar state provisions, (4) create similar difficulties. Legal privileges add yet more complications. The new regulations present these challenges to hearing officers at colleges and universities across the nation. (5)

Title IX investigators may have legal training and licensure, and even those without such education and credentials have the chance to gain a working knowledge of legal concepts such as relevance. Knowing these concepts is an important part of their jobs. By contrast, Title IX "decision-makers," the people who decide whether the accused party has committed an offense against institutional rules, are often drawn from the ranks of university faculty and staff who neither possess legal training nor devote substantial portions of their work time to Title IX. (6) These hard-working, committed university employees--such as English professors, residence hall managers, student affairs professionals, and physicians--have limited time for learning complex legal doctrine they may apply once or twice annually, if at all. To increase the degree of difficulty, the person presiding at the hearing must apply these doctrines in real time, ruling on the relevance of questions asked of witnesses at live hearings. (7) The presider must also decide whether a witness may avoid answering a question because of a "rape shield" provision, a legal privilege (such as the Fifth Amendment guarantee against self-incrimination), or the regulations protecting certain medical records. (8) Concurrently, the presider is prohibited from excluding other kinds of relevant evidence that would normally be excluded from court proceedings, such as hearsay and "prior-bad-acts" character evidence; that evidence must instead be admitted and then given whatever weight the decision-maker deems appropriate. (9) Good luck to the local Chaucer scholar. Better you than me, Assistant Director of Greek Life.

This Article aims to help colleges and universities do what federal law now demands of them: retain Title IX hearing officers capable of deciding whether questions will elicit relevant evidence, of applying the "rape shield" now embedded in federal regulations, and of evaluating whether evidence is inadmissible for some other reason. (10) The Article aims to help decision-makers avoid becoming overwhelmed with legal analysis, lest they fail in their true purpose--providing a fair hearing to all parties and issuing a sensible decision based on the evidence. Part II uses a well-known fictional trial to illustrate how hearing officers must decide what evidence is relevant; it also offers a lesson on the definition of relevance. Part III suggests how colleges and universities can avoid the task of training competent Title IX hearing officers by hiring external personnel. It also argues that--regardless of whether internal employees or external personnel preside at a Title IX hearing--institutions may wish to separate the role of judge (that is, the person who presides and decides what evidence to admit) from that of jury (that is, the persons who decide the result). Part IV discusses relevant evidence that must be excluded from campus hearings under federal law, including evidence covered by a "rape shield" and evidence protected by a legal privilege. Part V considers some larger policy issues, including why quality campus hearings are so important as well as special problems presented by virtual hearings. The portions of the Article discussing rules of evidence applicable to campus hearings--especially Part II and Part IV--have two primary purposes. First, they aim to convince campus leaders that faculty and staff lacking legal training and experience will not easily gain the knowledge and skills needed to conduct quality hearings under revised federal regulations. Leaders persuaded by this argument should hire external hearing officers. Second, these Parts aim to provide material useful to whoever will conduct trainings on what evidence is admissible at Title IX hearings. Title IX coordinators, campus investigators who present evidence at hearings, officers who preside at hearings, and faculty and staff deciding results can all benefit from a better understanding of the new evidence law created by the revised federal regulations. Even complainants and respondents may benefit from a primer. Trainers may freely borrow any material in this Article they find useful.

2. MAGIC GRITS AND THE CHALLENGE OF RELEVANCE

   To illustrate the difficulty of contemporaneously assessing whether a question is likely to elicit relevant evidence if answered by a witness, consider an anecdote about grits that arose during a fictional but well-known murder trial. Readers may recognize it. In any event, here is how a prosecution witness answered a question asked by defense counsel during cross-examination:

   "No self-respecting southerner uses instant grits. I take pride in my grits." (11)

   With that answer, Mr. Tipton, the witness under cross-examination by Vincent LaGuardia Gambini, stepped into the lawyer's trap. (12)

   For university faculty and staff, the sinking feeling experienced by a witness during skilled questioning may soon become all too familiar. Regulations published in May 2020 by the Department mandate that campus Title IX hearings include "cross-examination conducted by the parties' advisors," who may be, but need not be, attorneys. (13) Are campus hearing officers--often selected from faculty and staff with no legal training--ready to supervise this process? The Department has set a high bar, requiring that "the decision-maker must determine relevance prior to a party or witness answering a cross-examination question." (14) In my experience teaching evidence, determining whether something is relevant is challenging even for law students. (15)

   When I chaired a Title IX hearing panel, in a case of a faculty member accused of misconduct, the job was complex yet manageable. But we conducted it under now-defunct rules that prohibited lawyers (or other "advisors") from speaking. (16) Questions were submitted to me in writing, and I decided which ones to ask the witnesses. (17) In future hearings, the chair must oversee dueling lawyers--or non-lawyer advisors--asking questions of witnesses directly, all while evaluating the merits of evidence presented. (18)

   Non-lawyer advisors present special problems. Lawyers, at least in theory, are familiar with rules of evidence and will generally avoid offering evidence that is obviously inadmissible. They have professional pride and reputations to protect, and they can anticipate what actions will draw objections from opposing counsel and arouse the ire of judges. But the non-lawyer advisors brought by parties to campus hearings--which include parents, spouses, and friends--may act in unexpected ways, with no knowledge of how they have missed the mark. Hearing officers must prepare for both the sort of overreaching attempted by lawyers and the blunders of the uneducated.

   Take a moment to test your own knowledge of evidence law: If a lawyer asks a witness what he ate for breakfast on the day of a murder...