[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR100.9]



[Page 344-345]

 

                           TITLE 34--EDUCATION

 

       CHAPTER I--OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION

 

PART 100_NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE 

THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL 

RIGHTS ACT OF 1964--Table of Contents

 

Sec.  100.9  Hearings.



    (a) Opportunity for hearing. Whenever an opportunity for a hearing 

is required by Sec.  100.8(c), reasonable notice shall be given by 

registered or certified mail, return receipt requested, to the affected 

applicant or recipient. This notice shall advise the applicant or 

recipient of the action proposed to be taken, the specific provision 

under which the proposed action against it is to be taken, and the 

matters of fact or law asserted as the basis for this action, and either 

(1) fix a date not less than 20 days after the date of such notice 

within which the applicant or recipient may request of the responsible 

Department official that the matter be scheduled for hearing or (2) 

advise the applicant or recipient that the matter in question has been 

set down for hearing at a stated place and time. The time and place so 

fixed shall be reasonable and shall be subject to change for cause. The 

complainant, if any, shall be advised of the time and place of the 

hearing. An applicant or recipient may waive a hearing and submit 

written information and argument for the record. The failure of an 

applicant or recipient to request a hearing for which a date has been 

set shall be deemed to be a waiver of the right to a hearing under 

section 602 of the Act and Sec.  100.8(c) of this regulation and consent 

to the making of a decision on the basis of such information as may be 

filed as the record.

    (b) Time and place of hearing. Hearings shall be held at the offices 

of the Department in Washington, DC, at a time fixed by the responsible 

Department official unless he determines that



[[Page 345]]



the convenience of the applicant or recipient or of the Department 

requires that another place be selected. Hearings shall be held before a 

hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 

(section 11 of the Administrative Procedure Act).

    (c) Right to counsel. In all proceedings under this section, the 

applicant or recipient and the Department shall have the right to be 

represented by counsel.

    (d) Procedures, evidence, and record. (1) The hearing, decision, and 

any administrative review thereof shall be conducted in conformity with 

sections 5-8 of the Administrative Procedure Act, and in accordance with 

such rules of procedure as are proper (and not inconsistent with this 

section) relating to the conduct of the hearing, giving of notices 

subsequent to those provided for in paragraph (a) of this section, 

taking of testimony, exhibits, arguments and briefs, requests for 

findings, and other related matters. Both the Department and the 

applicant or recipient shall be entitled to introduce all relevant 

evidence on the issues as stated in the notice for hearing or as 

determined by the officer conducting the hearing at the outset of or 

during the hearing. Any person (other than a Government employee 

considered to be on official business) who, having been invited or 

requested to appear and testify as a witness on the Government's behalf, 

attends at a time and place scheduled for a hearing provided for by this 

part, may be reimbursed for his travel and actual expenses of attendance 

in an amount not to exceed the amount payable under the standardized 

travel regulations to a Government employee traveling on official 

business.

    (2) Technical rules of evidence shall not apply to hearings 

conducted pursuant to this part, but rules or principles designed to 

assure production of the most credible evidence available and to subject 

testimony to test by cross-examination shall be applied where reasonably 

necessary by the officer conducting the hearing. The hearing officer may 

exclude irrelevant, immaterial, or unduly repetitious evidence. All 

documents and other evidence offered or taken for the record shall be 

open to examination by the parties and opportunity shall be given to 

refute facts and arguments advanced on either side of the issues. A 

transcript shall be made of the oral evidence except to the extent the 

substance thereof is stipulated for the record. All decisions shall be 

based upon the hearing record and written findings shall be made.

    (e) Consolidated or joint hearings. In cases in which the same or 

related facts are asserted to constitute noncompliance with this 

regulation with respect to two or more Federal assistance statutes to 

which this part applies, or noncompliance with this part and the 

regulations of one or more other Federal departments or agencies issued 

under title VI of the Act, the responsible Department official may, by 

agreement with such other departments or agencies where applicable, 

provide for the conduct of consolidated or joint hearings, and for the 

application to such hearings of rules of procedures not inconsistent 

with this part. Final decisions in such cases, insofar as this 

regulation is concerned, shall be made in accordance with Sec.  100.10.



(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 

2000d-1)



[45 FR 30918, May 9, 1980, as amended at 65 FR 68054, Nov. 13, 2000]