Title IX Live Hearings and Cross-Examination Requirements

Federal law requires colleges and universities that receive federal funding to resolve formal Title IX sexual harassment complaints through a live hearing at which each party’s advisor conducts cross-examination of the other party and any witnesses in real time. The Title IX live hearing and cross-examination requirements sit in 34 C.F.R. § 106.45, part of the 2020 Title IX regulations that currently govern postsecondary institutions nationwide. A neutral decision-maker runs the hearing, rules on the relevance of each question before it is answered, and issues a written determination that both sides receive at the same time.

Which Rules Apply Right Now

The 2020 Title IX regulations are the ones in force. The Biden administration finalized a revised set of rules in April 2024 that would have made live hearings optional at colleges, but those rules never took full effect. Federal courts enjoined them in more than half the states, and on January 9, 2025, a federal district court vacated the 2024 regulations entirely. The Department of Education then announced it would enforce the 2020 rules going forward.¹

So the live hearing framework described below applies. Schools that started adjusting their policies to match the 2024 rules need to revert. Because the regulatory picture has shifted more than once, watch the Department of Education for any new rulemaking that could change these obligations again.

How the Live Hearing Is Set Up

The hearing is the final stage of the formal grievance process. A trained decision-maker weighs the evidence and decides whether the respondent is responsible for sexual harassment. Schools can hold the hearing in one physical room or run it by videoconference from separate locations. Either format works as long as the decision-maker can see and hear every person answering questions in real time.²

If either party requests it, the school must place the parties in separate rooms with technology that lets everyone simultaneously see and hear the person being questioned. This request is not something the school can decline. Institutions commonly use secure configurations of Zoom or Microsoft Teams, and some use specialized hearing platforms. The school is responsible for making the technology work and for providing support if a connection drops.

The school must also create an audio or audiovisual recording, or a written transcript, of the hearing, and keep it as part of the case file. Both parties have the right to inspect and review that recording or transcript after the hearing. It is the official record for any appeal.

Advisors Do the Questioning

Every party must have an advisor at the hearing, and the advisor conducts cross-examination. Parties are not allowed to question each other or the witnesses directly.² The advisor asks the questions; the party stays silent during that phase.

You can pick anyone as your advisor. A parent, a friend, a faculty member, a licensed attorney. The school cannot dictate your choice or block you from bringing the person you want. If you arrive at the hearing without an advisor, the school must appoint one for you at no cost. Institutions typically keep a roster of trained staff or outside consultants who can step in. The school has to give both parties advance notice of these rights so there is time to arrange representation.

The regulations do not require any particular training for an advisor you choose on your own. When the school appoints one for you, that person should be trained on how the grievance process works, how cross-examination functions, the relevance standard, and any decorum rules the school uses.

How Cross-Examination Runs

After opening presentations, each party’s advisor questions the opposing party and the witnesses orally and in real time. The person being questioned answers in their own words during the live session. That direct exchange lets the decision-maker observe demeanor, hesitation, and consistency in ways a written statement cannot show.

Advisors often work through specific evidence from the investigation file as they ask questions: text messages, emails, written statements, photographs. Every question and answer becomes part of the permanent hearing record. The parties themselves remain silent while their advisors handle the questioning, which keeps the complainant and respondent from directly confronting each other during the most intense part of the proceeding.

Relevance Rulings Happen Before Each Answer

Before a witness or party answers a cross-examination question, the decision-maker must rule on whether the question is relevant. Advisor asks, decision-maker rules, then the witness answers. If the decision-maker excludes a question, they must explain the reason on the record right then, tied to the specific question and the facts of the case. That real-time explanation gives both sides a clear basis for an appeal challenge if one becomes necessary.²

Rape Shield Limits

The regulations categorically exclude two kinds of questions about the complainant. Questions about the complainant’s prior sexual behavior or sexual predisposition are deemed irrelevant, with only two narrow exceptions:

Evidence of prior sexual behavior offered to prove that someone other than the respondent committed the alleged conduct.
Evidence of prior sexual behavior between the complainant and respondent offered specifically to prove consent.

Outside those two situations, the decision-maker must strike the question. The purpose is to keep the hearing on the specific allegations rather than on the complainant’s sexual history.

Decorum

Advisors have broad latitude to ask probing questions, but the school can set rules of decorum. The Department of Education has confirmed that schools may prohibit badgering a witness and may treat repetitive questions as irrelevant.³ Many institutions require advisors to keep a respectful tone and to address questions to the decision-maker rather than shout across the room. If an advisor violates decorum rules, the decision-maker can pause the proceeding and redirect.

Standard of Proof and Burden

The school, not the parties, bears the burden of gathering enough evidence to determine whether sexual harassment occurred. Neither the complainant nor the respondent has to prove anything; the investigation carries that weight.⁴

For the final call, the school must apply one of two standards:

Preponderance of the evidence, meaning more likely than not. This is the default.
Clear and convincing evidence, a higher bar. A school may use this standard only if it applies the same standard to all comparable proceedings, including other discrimination complaints.

If the evidence does not meet the applicable threshold, the decision-maker must find that sexual harassment did not occur.⁴

What Happens If Someone Skips the Hearing

Non-participation has been one of the most contested pieces of the 2020 regulations. The original rule barred the decision-maker from relying on any prior statement by a person who did not submit to cross-examination at the hearing. Written statements, investigative interviews, attributed text messages — all excluded if the speaker did not appear.

That exclusionary rule was challenged in Victim Rights Law Center v. Cardona, and a federal court questioned whether automatically discarding an absent witness’s statements was fundamentally fair. The Office for Civil Rights then issued guidance telling schools to stop suppressing statements solely because a party or witness did not participate in cross-examination.⁵

Under the current enforcement approach, decision-makers can consider police reports, medical records, and prior investigative interviews even when the speaker does not appear for cross-examination. The decision-maker still has to assess the reliability of any unchallenged statement, but non-appearance no longer triggers an automatic bar. A party’s refusal to answer questions or to attend cannot by itself be the basis for a responsibility finding; the decision-maker has to rely on the totality of the evidence.

The Written Determination

After the hearing, the decision-maker issues a written determination that both parties receive at the same time. It has to identify the allegations, describe the procedural steps taken, lay out the findings of fact, explain how the school’s code of conduct applies to those facts, state whether the respondent is responsible for each allegation and why, list any sanctions on the respondent and any remedies for the complainant, and describe the grounds and procedures for appeal.

The determination becomes final when the appeal window closes without a filing or when the appeal process concludes. Sanctions cannot take effect until the determination is final. Supportive measures for the complainant can stay in place throughout.

Appeals

Both parties can appeal, and the school must offer appeals on at least three grounds:⁶

Procedural irregularity that would have changed the outcome.
New evidence that was not reasonably available at the time of the determination and would change the outcome.
Conflict of interest or bias on the part of the Title IX Coordinator, investigator, or decision-maker, either generally or against a specific individual, that would have changed the outcome.

Schools can add other grounds, but any additional grounds must apply equally to both parties. The person deciding the appeal must be someone other than the original decision-maker and the investigator, must be trained on the Title IX regulations, and must be free from conflicts of interest.

Informal Resolution as an Alternative

Not every formal complaint has to end with a live hearing. A school may offer informal resolution, such as mediation or restorative justice, but only if both parties give voluntary, written consent. The school cannot pressure a party into informal resolution or condition enrollment or employment on it.²

Either party can withdraw before signing a final resolution and return to the formal process. One firm limit: informal resolution is not available when the allegation involves an employee sexually harassing a student. In those cases, the formal investigation and live hearing are the only route.

Training Materials You Can Request

Decision-makers, investigators, Title IX Coordinators, and anyone else who implements the grievance process must be trained on serving impartially, avoiding prejudgment and conflicts of interest, and applying the relevance standard. Training happens on hire and annually. The school must keep all training materials for at least seven years and must make them available for public inspection on request.⁶

If you are a party in a case, you can ask for the materials used to train the decision-maker who will hear your case. Reviewing them can show whether the training was balanced or leaned toward one side, and any imbalance you find could support a bias argument on appeal.

1
Congress.gov. Status of Education Department’s Title IX Regulations
2
U.S. Department of Education. Summary of Major Provisions of the Department of Education’s Title IX Final Rule
3
U.S. Department of Education. Questions and Answers Regarding the Department’s Final Title IX Rule
4
eCFR. 34 CFR 106.45 – Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex Discrimination
5
U.S. Department of Education. Questions and Answers on the Title IX Regulations on Sexual Harassment
6
eCFR. 34 CFR Part 106 – Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance