The 2020 Department of Education Title IX Final Rule requires that a university hold a live hearing with cross-examination as part of its formal complaint process.
A university is required to include a live hearing in its formal complaint process. Live hearings are conducted by a Decision-maker or panel of Decision-makers who are trained in Title IX law and processes.
BYU's Sexual Harassment Grievance Procedures outline BYU's live hearing process.
Some of the legal requirements of the live hearing requirement include the following:
(1) Cross-examination at hearing must be conducted directly, orally, and in real time by the party's advisor and never by the party personally.
(2) If a party does not have an advisor, the school must provide an advisor, free of charge, to conduct cross-examination for that party. The advisor may be, but is not required to be, an attorney. If an advisor is appointed by the university, this does not create an attorney/client relationship with the party.
(3) Only relevant cross-examination and other questions may be asked of a party or witness. Before a party or witness answers a cross-examination questions, the Decision-maker must determine whether the question is relevant and explain any decision to exclude a question as not relevant.
(4) Questions and evidence about the complainant's prior sexual behavior are not relevant unless: (a) they are offered to prove that someone other than the respondent committed the alleged conduct; or (b) they concern specific incidents of the complainant's prior sexual behavior with the respondent and are offered to prove consent.
(5) If a party or witness does not submit to cross-examination at the live hearing, the Decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility.
(6) At the request of either party, the university must provide for the live hearing to occur with the parties located in separate rooms connected by technology in order to allow the Decision-maker(s) and the parties to simultaneously see and hear the party or the witness answering questions.
(7) Live hearings may be conducted either with all parties physically present or with participants appearing virtually, connected by technology so that parties may see and hear one another.