By Brett A. Sokolow, J.D., Chair of the Board, TNG; President, ATIXA
Last October, I wrote a column on what my colleagues and I at TNG Consulting had learned from serving as hearing decision-makers in our first fifteen live hearings under Title IX. Since then, we’ve facilitated many more hearings and learned many more lessons. This Tip of the Week allows us to focus on two challenges – process delays and the resultant staleness of witness recollection. We’ll expand this series with other parts in the months to come.
One objection to the live hearing approach of the 2020 regulations was that for the colleges not using live hearings to address Title IX complaints (the majority), the implementation of live hearings would slow down the resolution process considerably. We anticipated that the process might be slowed by as much as two to four weeks. Now, we’re regularly seeing delays that are commonly two months or more, which means that the resolution process is taking far longer than anticipated. Like many labor markets, Title IX offices are understaffed and facing dwindling and under-qualified applicant pools for advertised positions. The inability to fill positions has resulted in substantial delays in processing complaints and is burning out existing Title IX employees, who are often doing the work of two to three professionals just to stay afloat.
Drawing out the process has many negative side-effects, though some parties and their advisors are eager to do so. For many colleges and universities, the resolution process of a single, simple complaint can take four to six months. For some, it is even taking a year or more, especially when the complaints are complex and/or involve multiple witnesses. We must work to shorten these processes and avoid delays. The three most impactful effects of the delays are:
- Witnesses are no longer available or interested in participating in the scheduled hearing.
- Witnesses have very little recollection of what happened, or what they told to investigators during the investigation. As a result, in the hearings we are facilitating, we are seeing a lot of witnesses contradict their statements to investigators, without even realizing it. They come across as lacking credibility, when the real issue is often that so much time has passed that their recollections have dimmed. Thus, their more contemporaneous statements to investigators in the investigation report have become far more important and accurate than their testimony at the live hearing.
- Last-minute requests to delay the hearing can cause turmoil, emotional angst, and gamesman(person)ship.
It was common before the 2020 regulations for some colleges to hold live hearings, mostly at public universities. Many procedures mandated that witnesses participate in the resolution process, especially if they were employees, but students, too. In aggregate, it’s fair to say that approximately 80% of witnesses identified would show up and participate, overall. Now, we’re lucky if 50-70% of the identified witnesses show up for the hearing (and that’s with mostly virtual rather than in-person proceedings), and in a few hearings recently, we’ve only had one or two witnesses participate, though seven to ten were identified and participated in the investigation. Now, institutions can’t mandate witness participation either, as a result of the 2020 Title IX regulations.
With so few witnesses participating, the quality of decisions is lower because the quality and quantity of available evidence is less. That’s the exact opposite of what the 2020 Title IX regulations aimed to achieve by implementing more stringent due process protections – higher quality decisions and outcomes. It is critical to understand that promptness is still expected under Title IX and that process delays are undermining witness participation. Accelerate the process, and more witnesses will be available and willing to participate. If your resolution process is slow, we recommend that you build some reasonable expectations with witnesses that it may be many months before the institution is back in touch with them once they have given investigators their initial statements.
We want to encourage administrators to say no to last minute requests for delays unless they are unavoidable. In a recent resolution process, an advisor (attorney) asked to delay a hearing because they had to be in court. When we requested the docket for the matter, showing them as a lead attorney, they became very offended that we did not trust them. Turns out, there was no case docketed. They were just trying a common delay tactic and used an excuse that likely violated their professional ethics. We called them on it and went forward with the hearing as planned.
We should be willing to accommodate delays when the parties legitimately cannot attend, but we’ve historically been less likely to accommodate their advisors. Yet, under the 2020 regulations, we also need the advisors to participate in the hearing to conduct cross-examination, and if they can’t or won’t attend at the last minute, it is really difficult to appoint a new advisor in time, have them get up to speed on the investigation file, and prepare questions. If you must delay, try to keep the delay short. In most hearings, if we have to move the date, we’re re-juggling the schedules of at least 8-20 people, depending on how many witnesses are involved. With that many moving parts, inconvenience, and the confusion of the witnesses (most of whom are students who’ve already made plans to miss class/reschedule assignments), it’s no wonder that some of them just drop out of the process and don’t show up for the hearing.
As a result, we’ve adopted some new practices as hearing chairs that might help your process as well:
- We stay in touch with the witnesses throughout the resolution process to keep them engaged, to help reassure them that we are taking action (though it may not seem like it), and to inform them of any delays and our anticipated timeline for a hearing.
- We provide witnesses with copies of their investigation statements/interviews prior to the hearings to ensure they are refreshed on their testimony. It may have been many months to a year since they were interviewed, and they may not recall specifics at the hearing. Students are rarely organized enough to have kept the copy of the statements they were sent by the investigators to verify accuracy, and again, it may have been many months or even a year prior.
- We text and email the witnesses several times during the week before the hearing to keep them engaged, to keep them apprised, and to ensure they know when and where to show up. If any witnesses don’t RSVP in advance, we let the parties know, and ask them to contact the witnesses to encourage their participation. We also offer for the Title IX office to reach out to their faculty to ensure that class absences during the hearing are excused. The Title IX office can also provide attendance verification if needed for athletic or other practice or employment purposes.
- We’re being much more careful to verify the basis for why a hearing delay has been requested, and much less likely to tolerate delaying tactics that are intended to draw the process out (or discourage witness participation).
Are these perfect solutions? No, they are band-aids on a broken process that OCR is actively working to address with new regulations. Is this a lot more work for an already over-worked Title IX office? Yep. Thanks to the 2020 Title IX regulations.
To inquire about our Title IX Hearing support services, please email us at inquiry@tngconsulting.com.