Hearings under the 2020 Title IX Regulations.
BartlettJames is Prepared to Provide Highly Experienced Decision-Makers for Your Title IX Hearings
One of the most crucial steps in the Title IX grievance process is the formal Title IX hearing. This is the pivotal point following the investigation of a formal complaint when a decision must be reached as to the underlying allegation or allegations and as to sanctions, if appropriate.
At every stage of the grievance process, educational institutions face societal pressure as well as legal and regulatory mandates to ensure the parties involved receive fair and objective treatment. The Title IX hearing is a critical stage since it ultimately results in a determination of the merits of a formal complaint. With its procedural steps and its requirement that decision-makers have an appropriate level of training on the Title IX regulations, it presents additional challenges for colleges and universities to avoid bias and provide an appropriate outcome based on the available facts.
BartlettJames is here to assist by providing highly experienced attorneys to serve as decision- makers in Title IX hearings. With years of judicial and higher education experience, we understand the Title IX regulations, including issues of relevance and when questions may or may not be asked of parties and witnesses. We bring impartial decision-making, professional expertise, and exceptionally detailed, defensible work to your campus.
Are you preparing for a Title IX hearing? BartlettJames provides public and private universities and colleges with decision-maker expertise and support necessary to conduct a fair and transparent hearing. Get in touch with us immediately if you are facing an imminent Title IX hearing. We will respond within one hour.
How BartlettJames Assists with Title IX Hearings: We Provide Expert Decision-Making
BartlettJames provides trained and highly experienced decision-makers to preside in Title IX hearings. All our decision-makers are attorneys with no less than 20 to 30 years experience in the practice of law. The majority of our decision-makers have served as judges in administrative proceedings or in criminal proceedings, or both. They know the Title IX regulations; more importantly they know how to conduct a hearing that assures fairness to the parties and a legally defensible outcome for the institution. We are committed to assuring that your institution is postured to survive any subsequent legal challenge to your process.
We are experienced in identifying the relevant evidence, assuring impartiality, and applying the appropriate safeguards to the process. Our experience in these matters also teaches us that every institution has a slightly different hearing procedure. That is why every one of our decision- makers carefully studies your policy and applies your unique hearing procedures to assure compliance with your rules and with the federal Title IX regulations.
Bringing Judicial Experience and Impartiality to the Decision-Making Process
With decades of judicial experience and years spent working with educational institutions on Title IX cases, and with institutional counsel on sensitive legal matters, we are equipped to handle the most complex and challenging Title IX hearings.
Our team understands the nuances and complexities of Title IX cases and life on a college campus. We understand the universal pressure faced by college officials to address and resolve Title IX complaints quickly, effectively and fairly. In serving as decision makers, our team operates within your institutional culture and customizes our approach to your institution’s policy. We assure compliance with the federal Title IX regulations and with your institutional policy, while developing a record that will be resilient and defensible in the face of legal pressures and potential litigation.
If you need a highly experienced decision-maker or a team to preside as decision-makers, contact us today—we are available on short notice.
Informal Resolution in lieu of a Formal Hearing
Title IX hearings occur after a formal Title IX complaint has been filed, an investigation has been conducted, and a decision has been made to resolve the complaint with a formal hearing. Hearings are usually, but not always, a component of resolving formal Title IX complaints.
The 2020 Title IX regulations allow schools to offer parties an informal resolution process in place of a formal hearing, except for complaints involving faculty members and/or employees who have allegedly sexually harassed a student. Schools are not required to offer and facilitate informal resolution, and they cannot in any manner coerce a party to enter informal resolution. If parties choose to elect informal resolution, all parties must give written consent to proceed with this option.
Fundamental Requirements Regarding Formal IX Hearings.
Under Title IX of the Education Amendments of 1972, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under the 2020 Title IX regulations implementing the 1972 statute, sexual harassment includes unwelcome sexual conduct (often referred to as quid pro quo harassment), sexual assault, dating violence, domestic violence, stalking, and unwelcome conduct so severe, persuasive, and objectively offensive that if effectively denies a person equal access to a school’s program or activity.
Postsecondary institutions that receive federal funding from any source must provide for a live hearing in their Title IX grievance procedures. A Title IX hearing determines whether a respondent is responsible for violating the Title IX prohibition of sexual harassment as defined in the preceding paragraph.
The 2020 Title IX regulations require complainants and respondents to be treated equitably. They also require an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence. They provide that credibility determinations may not be based on a person’s status as a complainant, respondent or witness. Title IX decision-makers must not have a conflict of interest or bias for or against complainants and respondents. Decision-makers must receive training on the definition of sexual harassment (as defined above), the scope of the institution’s educational program or activity, how to conduct a hearing, and how to serve impartially by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
Decision-makers must be trained on any technology to be used at a live hearing and, most importantly, on issues regarding relevance of questions and evidence. This includes understanding when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant. Such questions and evidence are only relevant in the limited circumstance when offered to prove that someone other than the respondent committed the conduct alleged or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
These requirements illustrate the advantages of engaging individuals who are trained and experienced in ruling on evidentiary matters, including relevance and admissibility. All BartlettJames team members have this training and experience and thereby will alleviate any institutional uncertainties regarding the credentials of a Title IX decision-maker.
Team.
Donna Wright
Donna is regarded as one of the leading Title IX Decision Makers in America. Donna trains and oversees the BartlettJames team of retired judges who provide hearing assistance around the nation. Donna’s enviable 35-year career as an attorney and Military Judge marks her as one of the true leaders of our organization. She is superbly experienced in administrative, environmental, personnel, and contract law. Donna is based in Florida.
Donna Wright.
Donna is regarded as one of the leading Title IX Decision Makers in America. Donna trains and oversees the BartlettJames team of retired judges who provide hearing assistance around the nation. Donna’s enviable 35-year career as an attorney and Military Judge marks her as one of the true leaders of our organization. She is superbly experienced in administrative, environmental, personnel, and contract law. Donna is based in Florida.
Donna served on active duty with the U.S. Army as a Judge Advocate for over twenty years, including 11 years on the bench as a trial judge, presiding over a thousand courts-martial. She presided over innumerable cases involving murder, sexual assault, drug trafficking, larceny and a wide variety of felonies. Earlier in her career, she served as both a prosecutor and a defense counsel. In the latter capacity, she was often requested by name by female service members who appreciated the sensitivity and skill she brought to her position. Donna has been published extensively on the practice of military justice and developed pattern jury instructions for other military judges to use. She was hand-picked to conduct a sensitive pretrial hearing into sexual assault allegations against the highest-ranking enlisted Soldier in Europe, a case with wide-spread media attention.
Donna retired from the Army as a Colonel and went on to advise the Army as a civilian attorney in several positions, culminating in her role as the Division Counsel for a regional headquarters for the U.S. Army Corps of Engineers. Through her background as a litigator, she has developed outstanding interviewing skills and has been trained to relate to special victims, such as women and children in sexual assault situations. Donna has also worked extensively with underrepresented minority groups during her career.
Donna was in the first class of women to graduate from the U.S. Military Academy at West Point, NY in 1980. That experience has given her a unique perspective on gender dynamics, especially as they relate to women facing a challenging and hostile environment. She later graduated from Villanova University School of Law, with Honors, and subsequently she earned an LL.M. in Military Law, with a Criminal Law Specialty, from The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia and an MBA from Hawaii Pacific University.
Laurel Wilkerson
Laurel is a highly experienced Title IX investigator. She also serves as one of our most respected Title IX decision-makers. Laurel is an attorney by training. Her career spanned 21 years in the United States Army Judge Advocate General’s Corps, where she served as a Special Assistant U.S. Attorney, a criminal prosecutor, and in various other positions in administrative law, family law, and on the Army staff in policy positions at the Pentagon. Laurel served as a legal advisor to Department of Defense School Boards and as the Chief of Recruiting for Army lawyers at law schools throughout the United States.
Laurel Wilkerson.
Laurel is a highly experienced Title IX investigator. She also serves as one of our most respected Title IX decision-makers. Laurel is an attorney by training. Her career spanned 21 years in the United States Army Judge Advocate General’s Corps, where she served as a Special Assistant U.S. Attorney, a criminal prosecutor, and in various other positions in administrative law, family law, and on the Army staff in policy positions at the Pentagon. Laurel served as a legal advisor to Department of Defense School Boards and as the Chief of Recruiting for Army lawyers at law schools throughout the United States.
After retiring from the military, Laurel proved herself an astute and highly successful business professional. Her business acumen is a frequent source of insight to many of our clients. She served as an Area Representative for a national franchise and purchased and co-owned the Oklahoma and Northern Texas territories and the rights to develop Marco’s Pizza Franchises in those areas. Laurel was responsible for opening/selling 40 stores in the area in five years. She owned/operated seven Marco’s Pizza Franchise Stores with annual sales exceeding $6 million dollars in revenue with 285 employees and supervised 12 other franchisees operating within the market. Laurel was named: Best AR/Franchisee of the Year – 3 three years, Top Sales in Franchise – two years, and Top Veteran Franchise Owner in the U.S. -- one year.
Laurel was based in Colorado from 2015 until November 2023. She served on the Summit County Seniors Foundation Board and on the board for the Summit 50 Plus organization (a 1200-member nonprofit that serves older adults in the community.) She delivered Meals on Wheels and worked for and supervised the Mountain Safety Patrol at Copper Mountain throughout the winters.
Laurel earned her business degree and law degree at the University of Georgia. She also holds an L.L.M. and an M.A. in national security and strategic studies.
Laurel currently resides in Tennessee.
Bruce Smith
Executive DirectorBruce is a co-founder and Executive Director of BartlettJames LLC. Bruce is a seasoned Title IX decision maker. He oversees the daily operations of the firm and chairs our Executive Committee. Bruce and co-founder Bert Nunley designed our nationally-regarded team with broad-based investigative capabilities, specifically tailored to address the increasing needs for transparent, in-depth and thorough investigations for institutions of higher learning. Bruce’s vision, enthusiasm and tireless work ethic shapes the strategic trajectory for the BartlettJames team in its engagements around the nation and the globe.
Bruce Smith.
Bruce is a co-founder and Executive Director of BartlettJames LLC. Bruce is a seasoned Title IX decision maker. He oversees the daily operations of the firm and chairs our Executive Committee. Bruce and co-founder Bert Nunley designed our nationally-regarded team with broad-based investigative capabilities, specifically tailored to address the increasing needs for transparent, in-depth and thorough investigations for institutions of higher learning. Bruce’s vision, enthusiasm and tireless work ethic shapes the strategic trajectory for the BartlettJames team in its engagements around the nation and the globe. Bruce is based in South Carolina.
Bruce is a retired federal Administrative Law Judge, having most recently completed service of 11 years with the Department of Homeland Security in 2018 in New Orleans, Louisiana. He has presided over innumerable hearings involving sensitive and highly-classified matters relating to national security, including several highly publicized trials involving ranking government officials, major air carriers, and licensed maritime officers. He is also a retired U.S. Air Force pilot and Judge Advocate, having served 21 years as a decorated aviator, military prosecutor, investigator, and Military Judge on active duty and in the reserves. Among his many military and civilian awards is the prestigious Award for Trial Advocacy presented by the New York City Bar Association.
In the course of his employment as a Judge Advocate and Administrative Law Judge, Bruce has conducted numerous highly classified investigations into sensitive matters of national security and interpersonal relationships both in the United States and abroad. His military duties included serving as a senior legal counsel on a variety of topics, including employee discipline, adherence to civil rights, and oversight of federal and state law enforcement conduct, including use of force cases.
Bruce is an Honor Graduate from the Washburn University School of Law and served on the board of editors of the Washburn Law Journal. He holds an LL.M. in International Law from the Judge Advocate General’s School, U.S. Army, located in Charlottesville, Virginia.
Basic Hearing Procedures under the Title IX Regulations.
Decision-maker. Under the 2020 Title IX regulations, decision-makers cannot be the same person or persons who conducted the underlying investigation, and decision-makers cannot be the institution’s Title IX Coordinator.
Statements. The 2020 Title IX regulations initially prohibited reliance on a statement by a party or witness who did not submit to cross-examination at a live hearing for purposes of determining responsibility. A subsequent federal court case in 2021 in Massachusetts as well as an August 24, 2021 letter from the Department of Education provide that a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at a live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.
Live Hearings. Live hearings are required and may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, any or all parties, witnesses, and other participants may appear at a live hearing virtually. If so, technology enabling participants to see and hear each other simultaneously must be used. Institutions must also create an audio or audiovisual recording or transcript of any live hearing and make it available to the parties for inspection and review. At the request of either party, the institution must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker and the parties to simultaneously see and hear the party or the witness answering questions.
Determining Relevance of a Question. The following requirement illustrates the value of having a trained and experienced judge or attorney as a decision-maker: Before a party or a witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
Burden of Proof. The burden of proof in a hearing, as well as throughout the entire grievance process, must be on the institution and not on the parties. The burden of proof will be either by the preponderance of the evidence or by clear and convincing evidence. This must be the same standard as applied to formal complaints against employees, including faculty. An institution cannot, however, use a party’s medical records that are made and maintained in connection with treatment to the party unless the party provides voluntary written consent to do so for the grievance process.
Presentation of Evidence and Witnesses. Parties must be provided with an equal opportunity to present witnesses and inculpatory and exculpatory evidence. Parties may not be restricted in the ability to gather or present relevant evidence.
Advisors. Parties must be allowed to be accompanied by an advisor of their choice. If a party does not have an advisor, the institution must provide one. The institution may establish restrictions as to the extent to which an advisor may actually participate in the hearing, provided that any restrictions must apply equally to both parties. The decision-maker must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow up questions. This cross-examination at a live hearing must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally.
Determination as to Responsibility. The decision-maker must issue a written determination regarding responsibility. The decision-maker must be informed in advance of the burden of proof that the institution applies in its proceedings. The written determination must include the following:
1. Identification of the allegations potentially constituting sexual harassment:
2. A description of the procedural steps taken from the receipt of the formal complaint through determination, including notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather evidence, and hearings held;
3. Findings of fact to support the determination:
4. Conclusions regarding the application of the institution’s code of conduct to the facts;
5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, and any disciplinary sanction the institution imposes on the respondent and whether remedies to restore or preserve equal access to the institution’s education program or activity will be provided to the complainant. (Note that some institutions reserve the right to determine sanctions and remedies when a decision-maker has determined that a respondent is responsible for the alleged misconduct. In that case, the written decision is issued once the sanctions and remedies are provided to the decision-maker by the appropriate institutional official, such as the Dean of Students, the Director of HR, or the Vice Provost for Faculty Affairs or similarly titled individuals); and
6. The institution’s procedures and permissible bases for the complainant and the respondent to appeal.
Appeals. While an institution may offer other bases of appeals equally to both parties, the Title IX regulations require that the following bases of appeal must be provided to the parties:
1. Procedural irregularity that affected the outcome of the case;
2. New evidence that was not reasonably available at the time the determination regarding responsibility or a dismissal was made that could affect the outcome of the case; and
3. The Title IX Coordinator, investigator or decision-maker had a conflict of interest or bias for or against complainants or respondents generally, or the individual complainant or respondent, that affected the outcome of the case.
Get In Touch with BartlettJames to Obtain Qualified and Experienced Decision-Makers for Your Title IX Hearing
If you are seeking a Title IX decision-maker to preside in an upcoming hearing, contact us. BartlettJames also offers expert and certified Title IX mediation services if you offer informal resolution proceedings under the regulations.
Learn more about our higher education team, which includes experienced judges, seasoned university and corporate counsel, highly experienced and certified mediators, retired FBI supervisory special agents, and retired investigators from the Department of Defense.
------------------------------------------------------------------------
1. Because the 2024 Title IX regulations have been enjoined by federal court orders from enforcement in 26 states, as well in 500 other institutions of higher education across most states, including in states not subject to the court orders pertaining to the 26 states, this discussion is based on the 2020 Title IX regulations. Given the recent re-election of Donal Trump, and the fact the 2020 regulations were issued by the Department of Education while he was president, it is likely the 2020 regulations, or a very close version of them, will be in force during the next presidential administration. Consequently, and without commenting on the relative merits of the 2024 regulations vis a vis the 2020 regulations, this discussion uses the 2020 regulations as its basis.
2. Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021).
