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Live Hearing with Cross-Examination at UC-Boulder Reveals Major Improvements Under New Title IX Regulation

Larry Mertes

Mertes Law, Boulder, Colorado

May 14, 2021

On April 12 and 13, 2021, a retired Denver District Judge (1) conducted via Zoom the University of Colorado-Boulder’s (“UCB”) first formal hearing concerning student sexual misconduct applying the new Title IX rules.

John Doe, a UCB sophomore, stood accused of violating UCB’s Sexual Misconduct, Intimate Partner Violence, and Stalking Policy (2) (“UCB policy”) by engaging in vaginal and oral intercourse with the complainant at a time when he knew or should have known that she was incapacitated due to alcohol consumption and unable to consent to sexual activity.

This case was unique in that the complainant was not associated with UCB, the alleged misconduct was not connected to any UCB activity or program, and the alleged sexual misconduct occurred outside of the State of Colorado. After the investigation commenced the complainant first requested that the matter be dropped and then declined to participate in the live hearing. UCB’s response was to assign the complainant an advisor, complete its investigation, and proceed to a live hearing.

Allegations brought under UCB policy are not held to the current Title IX requirements due to relaxed preemption requirements (3) — a circumstance which slipped under the radar of most legal observers and commentators when the new regulations were modified following public review largely at the urging of ten states which had pursued more aggressive state legislation governing student sexual misconduct.
At the time of this report, five weeks post-hearing, no finding on John Doe’s case has been published by UCB. Important hearing takeaways are nonetheless available for consideration as follows.

Much like what makes civil litigation manageable in state and federal courts, the Office of Institutional Equity and Compliance at UCB (“OIEC”) — which is charged with implementing both Title IX and UCB policy investigations — provided clear pre-hearing guidance and worked collaboratively with counsel for the complainant, respondent, and the assigned Judge to refine and, in certain instances, develop new procedures to create the circumstances for a hearing which embraced important aspects of constitutional Due Process. Critical steps in this process included:

1. OIEC’s creation of a Hearing Manual (4) which outlined both expectations and roles in the hearing process for all participants. With some specificity the Hearing Manual also provided guidelines for the involvement of OIEC equity officers/administrators and hearing facilitation, parties, the hearing officer or hearing panel, advisors, support persons, witnesses, evidence handling, and limitation on non-involved persons in the hearing process. In its recitation of the scope of the planned hearing, the Hearing Manual affirmed that the process was designed to not be a repeat of the underlying investigation.

2. A mandated pre-hearing conference allowed the advisors, Title IX administrators, and the Judge to review and discuss the Hearing Manual procedures, set schedules for witness and exhibit disclosures, and have on-the-record discussions regarding areas of dispute including limits to the hearing officer’s role, how the absence of a party would be handled, prohibitions on the use of non-disclosed evidence, organization of and handling of exhibits during the hearing, and affirmatively addressing Doe’s request to have a court reporter present in addition to the official Zoom recording in order to facilitate a timely appeal if needed.

OIEC did an excellent job of providing updated hearing notices following the pre-hearing conference which included an accurate recitation of matters discussed and determinations subsequently made by OIEC.

Title IX regulations provide only for cross-examination. While it takes a moment to imagine a cross-examination which does not follow a direct-examination, UCB’s hearing process went well; and as a trial lawyer, I found myself simply shifting into direct examination mode when I wanted the Judge to hear a witness’s answer without me leading the witness (5).

Problem areas with UCB’s hearing process included:

1. OIEC declined my request to allow our Judge to review jurisdictional and procedural objections and instead limited him to making a simple determination of whether the matter involved a Title IX claim or was instead a UCB policy violation claim. In either instance, it was agreed that Title IX hearing rules were applicable to John Doe’s hearing.
2. In a Title IX case, if a party or witness does not submit to cross-examination at the live hearing, the Hearing Officer or Panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility. In a UCB policy case, OIEC applies a different standard, and the Hearing Officer or Panel is not required to exclude or disregard any prior statement based on a party or witness who does not submit to cross-examination at the live hearing. They may instead decide how much weight to give the prior statements, weighed in light of all the evidence in the case, and the issues to be decided.

In my opinion, OIEC’s modification of cross-examination requirement for UCB policy matters conflicts with the processes mandated under the new Title IX regulations as set forth in Section 106.6(h). Our Judge was not permitted by OIEC to weigh in on this substantial issue when the complainant in Doe’s case declined to participate in the hearing that her complaint initiated, and our Judge was directed to apply the UCB policy standard.

OIEC limitations on presenting “new evidence” outside of the investigative record artificially limits what can be presented at a hearing. This can become an issue when a student without an advisor engages in an interview with investigators and when potential cross-examination information is developed after the investigation is concluded but before the hearing is conducted, or when a party opens the door to a line of cross-examination not covered in the investigation but which becomes germane to issues raised in the hearing.

OIEC prohibitions on providing our Judge with briefings, memos, or motions from the parties or their advisors required me, as the respondent’s advisor, to play a particularly active role in outlining the case at prehearing conferences. This was incumbent upon me because neither the complainant’s newly assigned advisor nor our Judge had a complete understanding of the case as a result of not being provided a complete investigative file and/or because they were unable to complete a thorough reading of the file prior to prehearing conferences.

My conclusion is that the University of Colorado-Boulder went to great lengths to ensure a thorough and transparent process that went leaps and bounds beyond what was in place prior to the implementation of the new Title IX regulations.

Citations:

(1) Our assigned hearing officer/Judge heard the case under assignment from the JAMS mediation group in Denver, Colorado. https://www.jamsadr.com/solutions
(2) https://www.cu.edu/ope/aps/5014
(3) https://system.suny.edu/media/suny/content-assets/documents/sci/tix2020/Preemption.pdf
(4) University of Colorado Equity Offices Hearing Manual 2020-2021
(5)https://www.abajournal.com/magazine/article/direct_answers_examining_a_witness_is_telling_a_storyso_make_it_a_good_one