Board & Advisor �Title IX Training

Intersection of Federal Laws

What does Title IX Prohibit?

Title IX & Sexual Misconduct Types

• Sexual Harassment as defined in the 2020 Title IX regulations
• Sex/Gender discrimination (Equity)
• Any other policy violation that is sex/gender-based that causes a discriminatory effect (e.g., hazing, bullying, arson, vandalism, theft)
• Pregnancy and parental discrimination
• Retaliation

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Title IX Sexual Midsconduct

Things to Remember

• Title IX protection is the floor
• Miami University, as well as most universities, prohibit additional conduct that is not explicitly covered by Title IX.
• For example,
• Sexual exploitation
• Severe or pervasive or persistent
• Conduct outside of program/activity that has significant impact

The Clery Act

VAWA

• VAWA Section 304 created extensive new policy, procedure, training, education, and prevention requirements for:
• Sexual assault
• Stalking
• Dating violence
• Domestic violence
• Written information to victims regarding on- and off campus resources, remedies, interim measures, and resolution mechanisms and options
• Listing of policy and procedural elements required in the Annual Security Report
• Listing of key training elements and requirements
• Required educational programs and campaigns

Federal Law Summary

The Types of Sexual Misconduct

Understanding the Process

The Formal Investigation

The Role of an Advisor

Advisor of Choice in TIX Procedures

• Parties must have the same opportunities to have others present during any proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the Advisor of their choice, who may be, but is not required to be, an attorney
• May not limit the choice or presence of Advisor for either the Complainant or Respondent
• Don’t have to provide an attorney or equivalently educated/trained Advisor to one party just because the other party has one
• Can regulate the extent to which Advisors may participate in the proceedings, if restrictions apply equally to all parties

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Advisor of Choice

• The Title IX process essentially distinguishes two types of Advisors:
• Advisor of Choice
• May be present for every meeting, interview, hearing
• Institution-Appointed Advisor
• Requirement applies only to higher education
• This Advisor may accompany the party throughout the entire resolution process, but the institution may limit this Advisor to only participating in the hearing and will usually only appoint this Advisor if the party has not chosen one by the time of the hearing

Provision of an Advisor

• If a party does not have an Advisor of choice present, the Recipient must provide, without fee or charge to that party, an Advisor of the Recipient’s choice, who may be, but is not required to be an attorney, to conduct cross-examination on behalf of that party
• A party and Advisor can strategize for the hearing and collaborate on preparation such as questions, opening and closing statements, impact statements, etc.
• Advisors can prepare witnesses, including expert witnesses, and prepare exhibits and visuals
• Advisors should be aware of any institutional policies or procedures that limit the last-minute introduction of new evidence at the hearing, rather than during the investigation

Institution-Appointed Advisor

• Advisee isn’t the Advisor’s “client”
• Conversations unlikely to governed by any “privilege” regardless of role
• Advisors need an ethical code or strong personal/professional integrity to guide them
• An Advisor could be called by the other party as a witness and asked about what they know (at Recipient’s discretion)
• Unless an institutional rule prohibits this or confers “confidentiality” on the Advisor

Who Can Serve as an Advisor?

• Friends, family, roommates, faculty, college or school staff members, attorneys, etc.
• Institutional rules will determine if a party may have more than one Advisor
• If more than one Advisor is not permitted, the advisee can rotate Advisors during the process, or the advisee can have one Advisor outside the meeting, and one inside with them
• An individual can’t advise both a Complainant and Respondent in the same matter
• If an individual serves as both an Advisor and has a role as a witness in the matter, they may wind up limiting the efficacy of their testimony as a witness because the Decision-maker may discount their credibility based on their dual roles

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Role of the Advisor

• An Advisor may:
• Accompany their advisee through all phases of the resolution process and explain the process
• Help their advisee decide whether to file a formal complaint and navigate other strategic issues such as whether to participate in informal resolution
• Prepare their advisee to respond to questions during the investigation, even rehearsing beforehand, and determine what evidence to share during an interview

Role of the Advisor (Cont.)

• Help the advisee to review and comment on the investigation report
• Help the advisee to advocate for the inclusion or exclusion of evidence from the process
• Help the advisee prepare for the hearing (documentation, opening statements, closing statements, impact statements, etc.), and must conduct any cross-examination at the hearing
• Help the advisee to frame the appeal and prepare appeal documentation

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Advisor Role in Investigations

• There should be clear institutional rules on the role of the Advisor during the investigation
• May accompany the party to all investigation interviews
• Role is typically limited to interacting with (and coaching) advisee during the interview
• Clarify with Investigator(s) whether you need to take a break or sidebar with your advisee or can speak directly to them during the interview
• Clarify whether you can address the Investigator(s), and under what circumstances

Investigation Reports

• The Investigator(s) will write an investigation report appropriately summarizing the investigation and all relevant evidence gathered
• OCR has created a two-step vetting process for review of the evidence and the report
• This is intended to allow the parties and Advisors to comment on the report prior to finalization and then to prepare for the hearing with the final report in hand

Investigation Reports (Cont.)

Prior to the completion of the FINAL investigation report:

• Evidence directly related to allegations must:
• Be sent to each party and Advisor
• Be in an electronic format or hard copy
• Include evidence upon which the Recipient does not intend to rely
• Include exculpatory and inculpatory evidence
• After sending the evidence, the Investigator(s) must:
• Allow 10 days for written response
• Consider response prior to completion of report

Investigation Reports (Cont.)

During the 10-day period when the report is being finalized, the advisee and Advisor may:

• Suggest new witnesses
• Suggest additional questions to be asked of parties or witnesses
• Comment on the evidence
• Offer new evidence
• Challenge Investigator determinations of what is relevant (evidence to be relied upon by the Decision-maker) versus what is directly related (evidence not to be relied upon by the Decision-maker)

Final Investigation Report

At least 10 days prior to making a responsibility determination (hearing):

• The final investigation report summarizing relevant evidence must be sent:
• To each party and Advisor
• In an electronic format or hard copy
• For the parties’ review and written response
• A separate file of all directly related, but not relevant evidence will also be shared (this evidence is excluded from the report)
• This right of access for the Advisor to the investigation report is direct and unencumbered (though a Non-Disclosure Agreement (NDA) can be required)

Investigation Reports

• Investigator will complete a Preliminary Investigative Report, an Appendix with all relevant evidence, and a list of directly-related evidence (if applicable)
• Parties are given 10 business days to respond to the report, but they do not have to respond
• After the review period has ended, the investigator will complete a Final Investigative Report and Appendix
• This report and appendix will be shared at least 10 business days prior to the hearing

Hearing Requirement

• Higher education institutions must provide for a live hearing
• At the live hearing, the Decision-maker(s) must permit each party’s Advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility
• Only relevant cross-examination and other questions may be asked of a party or witness

Advisor’s Role at and after Hearing

• Hearing Overview
• Questioning & Cross-Examination
• Determination of Responsibility
• Written Determinations

Questioning and Cross-Examination

• Cross-examination of the other party and all witnesses, if any, must be conducted directly, orally, and in real time by the party’s Advisor and never by a party personally
• The Board must permit relevant questions and follow-up questions, including those challenging credibility
• Once a question is posed, the Board must first determine whether a question is relevant and then, if so, will direct the party or witness to answer
• Must explain any decision to exclude a question as not relevant
• The relevance determination is final (though it could become an issue raised on appeal)

Questions regarding sexual history

NEVER RELEVANT

Questioning and Cross-Examination (Cont.)

• An advisee could choose to appear, choose not to appear, choose to appear and answer all questions, or choose to appear and answer some but not all questions
• If an advisee will rely upon a witness’s testimony or evidence, it is recommended that the Advisor help to ensure the witness attends the hearing to aid the Decision-maker in fully assessing their credibility and the credibility of the evidence provided
• The Board cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.

Questioning and Cross-Examination (Cont.)

• Ask direct questions. Don’t try intimidation tactics. They will likely backfire.
• Don’t try to trick or confuse others, either, for the same reasons.
• Remain seated while questioning. A hearing is not a courtroom.
• Respect the rules and boundaries of the process, even if you don’t agree with them (unless they violate the regulations).
• Pause after asking each question to allow the Chair/Decision-maker to determine the relevance.
• Avoid multi-part or confusing questions.

Cross Game

How many Questions should you ask?

• Ask witnesses (through direct examination or cross-examination) about every significant statement they have made (use the investigation report and interview transcripts as a roadmap)
• Advisors should prepare with their advisee so that they know what to ask of each witness and what their advisee wants them to ask
• Stick to what is relevant, which means the evidence would tend to prove or disprove an issue in the complaint

Additional Questions and Relevance

• Expect that the panel or Decision-maker may ask many questions as well, and that it may do so before an Advisor has a chance. If so, the Chair or Decision-maker may disallow an Advisor’s question if it duplicates a previously asked question.
• Keep track of what has been asked and be prepared to explain why a question is relevant or may produce a different answer than was already provided.

Other Considerations during Hearings

• Advisors should be supportive when their advisee is being questioned. If an advisee is uncomfortable or emotional, the Advisor can ask for a break.
• If an Advisor thinks their advisee doesn’t understand a question, they may ask the Decision-maker for it to be repeated or clarified, or they may repeat it for the advisee.
• Thus, you need to pay close attention to the question being asked.
• An advisee may find it helpful to pause before answering, pose the question again to themselves in their head, make sure they understand what is being asked, compose their thoughts in response, and then answer.

Additional Questions and Relevance

• Expect that the panel or Decision-maker may ask many questions as well, and that it may do so before an Advisor has a chance. If so, the Chair or Decision-maker may disallow an Advisor’s question if it duplicates a previously asked question.
• Keep track of what has been asked and be prepared to explain why a question is relevant or may produce a different answer than was already provided.

The Role of the Board

Evidentiary Determinations

• Determine whether questions are relevant
• The Title IX Coordinator will remove parties for abusive behavior after a warning
• Including advisors
• Weigh the credibility of witnesses
• Does the actual evidence support their story?
• Has their story changed?

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• IT IS CRUCIAL THAT YOU PAY ATTENTION DURING THE HEARING

The Final Decision

• Written outcome must be provided within 10 business days
• The specific allegation that constitutes a violation of the Policy
• Description of procedures that were followed for the Title IX process
• Findings of Fact that support outcome
• A conclusion that applies the appropriate definitions
• Rationale for each allegation regarding the determination of responsibility
• Sanctions, if any, for Respondent
• Remedies for Complainant
• Outline of Appeal Procedures.

The Final Decision- Simplifying it

• WHAT WAS ALLEGED
• WHAT WAS DONE IN THE PROCESS
• THE FACTS
• Finding of RESPONSIBILITY: IS THE RESPONDENT “RESPONSIBLE” or “NOT RESPONSIBLE” for the alleged violation and why
• WHAT ARE THE SANCTIONS/REMEDIES
• HOW TO APPEAL (THE SAME EVERY TIME)

You don’t have to remember all of that.

• There is a form you fill out!

Evaluating Cases & Practice

Evaluating Sexual Harassment

Sexual Harassment Continued

Sexual Assault

Sexual Assault (cont.)

• Alcohol
• How to determine level of intoxication
• Amount consumed
• Time periods
• Type of alcohol
• Who could see level of intoxication?
• Body composition of C, R, and witnesses
• What if someone “blacks out?”

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*You do not have to be an expert. Just use common sense.

Hypothetical 1

Collin and Rachel are classmates in History 101. The class began in August 2025.

Beginning the second week of the semester, Collin notices that Rachel begins to sit by him in every class, even though there is not assigned seating. Collin has sat in a different seat for every class period, and Rachel always sits by him.

In early September, Collin felt Rachel rub his thigh during class. Collin removed Rachel’s hand from his thigh, but he did not say anything to her.

A week later, Collin got up during class and Rachel squeezed his bottom as he walked past her. Collin again did not say anything to Rachel, but he was extremely embarrassed.

At the end of class, Collin asks Professor Smith if he can move to a new section of the class, but he does not say why he wants to move.

Hypo 1: Act as an Advisor to Respondent

• A formal complaint of sexual harassment and sexual assault has been filed by Collin against Rachel.
• You have been assigned as Rachel’s advisor.
• What evidence do you want to gather?
• What witnesses, if any, should you recommend that the investigator interview?

Hypothetical 2

Suzanne is a student and is also an unpaid research assistant for Professor Johnson.

Suzanne has taken several classes with Professor Johnson and has not had a real issue with him until she started being his research assistant in January 2023.

In her previous classes with Professor Johnson, he had made a few comments about Suzanne’s appearance, but it was typically just about her haircut or the shoes she was wearing.

In the second week of January, Professor Johnson asked Suzanne if she would like to grab a drink that upcoming weekend. Suzanne was uncomfortable and told Professor Johnson that she was busy.

The following week, Professor Johnson asked Suzanne two more times if she would grab a drink with him. Each time, Suzanne declined. The last time she declined, Suzanne stated that she was not interested in anything more than a professional relationship with Professor Johnson.

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Hypo 2: Act as an Advisor for Complainant

• A formal complaint of sexual harassment has been filed by Suzanne against Professor Johnson.
• You have been assigned as Suzanne’s advisor.
• What evidence do you want to gather to support Suzanne’s claim?
• What witnesses, if any, should you recommend that the investigator interview?

Dating and Domestic Violence

• Length and time of relationship
• Significant barriers to reporting
• What do you do with a party who is scared to come forward or go through with an investigation?
• How do you document the violence?

Dating and Domestic Violence

• Length and time of relationship
• Significant barriers to reporting
• What do you do with a party who is scared to come forward or go through with an investigation?
• How do you document the violence?

Dating and Domestic Violence Evidence

• Often the violence and abuse is hidden
• What evidence can the student uncover?
• Photographs
• Witnesses (either saw the violence or were told)
• Text messages or other communication
• Police reports

Stalking

• Have to show a “course of conduct” or pattern of behavior
• How do you show a pattern?
• Frequency of contact/events
• Is the stalking victim responding?
• Has the stalking victim shown the behavior is unwanted
• DOCUMENTATION IS KEY

HYPOTHETICAL 3

Ian and Rex have been dating for three months. Ian is constantly checking Rex’s location on Life360 and texting Rex to see what he is doing and who he is around. In February, Ian and Rex go to a bar and Rex becomes intoxicated. Later, Ian and Rex have intercourse.

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Ian frequently accuses Rex of cheating on him. He becomes irate and often throws things and breaks them in Rex’s dorm. He has never struck Rex with anything, but he often breaks Rex’s things.

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Rex finally ends things with Ian in June. Afterwards, Ian continues to track Rex’s location and send him dozens of unanswered text messages.

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HYPOTHETICAL 3

During the hearing Rex is able to produce text messages that support the following:

1. Ian often accused him of cheating
2. Ian tracked his location consistently even after the break up
3. Ian apologized for the sexual encounter the pair had while Rex was intoxicated.

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HYPOTHETICAL 3

• What kind of questions would you ask as the Board?
• What kinds of questions would you not permit?
• What would your decision be?
• Why?

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*Remember there is no Right Decision—there is only a well supported Decision

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