Challenging investigator or decision-maker bias.
Bias is one of three enumerated appeal grounds and a recurring theory in litigation against universities. It is also the ground respondents most often assert and least often establish, because the evidence has to be gathered while the process is running.
What the rule requires.
Title IX coordinators, investigators, decision-makers, and anyone facilitating informal resolution must not have a conflict of interest or bias for or against complainants or respondents generally, or an individual party. They must be trained on the definition of sexual harassment, the scope of the education programme, how to conduct the grievance process, and how to serve impartially - including avoiding prejudgment of the facts, conflicts of interest, and bias. Institutions must also make their training materials publicly available.
The categories that work.
Structural conflicts, where the same person occupied incompatible roles or previously advised a party. Recorded statements prejudging outcome or generalising about respondents. Role conflation, where an investigator also decides - a direct violation of the current rule. Training materials containing the stereotypes the rule prohibits. Asymmetric conduct, where evidence was gathered for one party and not the other or accommodations were granted unevenly. And institutional public statements that presuppose responsibility.
Why contemporaneous documentation is everything.
Bias asserted after a loss is a characterisation. Bias objected to in writing on the day it occurred, naming the person and the conduct, with a formal recusal request and a documented response, is evidence. The appeal ground requires both the bias and its effect on the outcome, and effect is easier to show where the objection preceded the decision - because the record then shows what the institution knew and chose to do anyway.
Why you should call us.
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Working with us starts with a risk-free consultation, in person or over the phone. You can ask us anything, for as long as it takes, and we encourage you to ask the tough questions. We are available 24/7, we practise coast to coast, and every client has direct access to a partner. Call 212 300 5196 - an attorney answers.
