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and not by the parties themselves. If a party does not have their own advisor, one must be provided by the
Recipient at no cost. The decision-maker overseeing the hearing must determine whether each question posed
by the advisor is relevant and explain any decision to exclude a question. Live hearings may be conducted with
all parties physically present in the same location, or may be conducted virtually. If a party or witness does not
submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party
or witness in reaching a determination regarding responsibility.
Under the Regulations, K-12 Recipients have the option of conducting live hearings, though live hearings are still
mandated under California Education Code section 48900 et seq. prior to the expulsion of any student. For K-12
Recipients, whether a hearing is conducted or not, once the investigative report has been sent to the parties and
before reaching a determination regarding responsibility, the decision-maker must afford each party the
opportunity to submit written questions they want asked of any party or witness. Answers to relevant questions
must be provided along with additional, limited follow-up questions from each party.
RECIPIENTS MUST CHOOSE AND CONSISTENTLY APPLY THE STANDARD OF EVIDENCE
A Recipient can decide whether the standard of evidence to be used during the grievance process is the
“preponderance of the evidence” or the “clear and convincing evidence” standard. The standard used must be
consistent whether the respondent is a student or an employee, and with all other formal investigation processes.
THE OPTION TO APPEAL MUST BE AFFORDED TO BOTH PARTIES
Both complainant and respondent must be offered the opportunity to appeal a determination regarding
responsibility, and from a dismissal of a formal complaint or any allegation therein. Appeals may be based on
(i) procedural irregularity; (ii) new evidence that was not reasonably available at the time of the determination or
dismissal; or (iii) conflict of interest or bias of the involved Title IX personnel.
RECORDS MUST BE MAINTAINED FOR 7 YEARS
A Recipient must maintain for a period of seven years, all records relating to sexual harassment investigations,
any appeal and the results therefrom, any information resolution and the results therefrom, and all materials used
to train Title IX Coordinators, investigators, decision-makers, or any person who facilitates an informal process.
TAKEAWAYS
The over 2,000 page document presents sweeping changes that are required for Recipients in their
implementation and handling of Title IX complaints. The above highlights some of the key changes, though by
no means is an extensive or complete outline of the Regulations. By August 14, 2020, all Recipients will need to
update their policies and procedures, train personnel, and in some cases add personnel to their Title IX teams. It is
important that the new requirements be included in student discipline procedures, as well as employee complaint
and discipline procedures.
If you have any questions about the new Title IX Regulation, Investigations or Title IX in general, please contact
the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also
subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.
New Title IX Regulations Overview LozanoSmith.com 5