Title IX Training�August 19, 2024

Brooke E. D. Say, Esq.

Dr. Leigh E. Dalton, Esq.

Overview: What Is Title IX?

Brief History of Title IX

Title IX of the Education Amendments of 1972 was passed on June 23, 1972. In the two years preceding the passing of Title IX, debates about discrimination against women and education were raging in Congress, especially regarding the quality of athletic opportunities available to women compared to their male counterparts. The regulations implementing Title IX have been amended multiple times, including in 2020 and 2024.

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At its conception, Title IX was designed to prevent discrimination against women in educational institutions, including in scholastic athletics. However, it’s important to remember that at the core of the legislation -

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Title IX applies to both boys and girls (students), men and women (employees), and to instances involving sex stereotyping (“boys should act this way …” or “girls are supposed to…”).

• Title IX of the Education Amendments of 1972 (Title IX) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities.
• It has been more than 45 years since enactment of Title IX.
• Title IX states in part:
• “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….”

• Athletics
• Equal treatment of teams
• Sexual Harassment
• Persons should be able to access the school’s education program and activity without experiencing harassment on the basis of their sex.
• Discrimination based on sex
• Under the new regulations, ‘sex’ now includes ‘gender identity.’

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What are we talking about?

When are the School’s Obligations Triggered?

Knowledge by Employees

Who Enforces Title IX?

The Office for Civil Rights (OCR) is responsible for enforcing Title IX. Additionally, OCR has the legal authority to enforce Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color and national origin); Section 504 of the Rehabilitation Act of 1973 (prohibiting discrimination on the basis of handicap); the Age Discrimination Act of 1975 (prohibiting discrimination on the basis of age); and portions of the Americans With Disabilities Act of 1990 (prohibiting discrimination on the basis of disabilities).

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OCR enforces Title IX by investigating complaints, conducting compliance reviews, and providing technical assistance. An institution found to violate Title IX (or any of the regulations enforced by OCR) has the opportunity to remedy the violation voluntarily. OCR is required by federal law to seek a voluntary resolution.

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If an institution refuses to remedy the violation, then OCR may pursue one of two

courses of action: initiate administrative procedures to terminate federal funding to the institution; or refer the case to the U.S. Department of Justice to pursue enforcement in federal court.

The U.S. Department of Education, Office of Civil Rights (OCR)

Overview: What Is Title IX?

Requirement to Make Training Materials Public

As to“[a]ll materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, [a] recipient must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public.”

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34 C.F.R. § 106.45(b)(10)(i)(D)

Definitions Throughout

• Recipient = School District
• Complainant = Alleged Victim of Sexual Harassment
• Respondent = Alleged Perpetrator of Sexual Harassment
• Title IX Coordinator = ???
• Title IX Investigator = Person authorized to conduct an investigation into the allegations
• Title IX Decision-Maker = Person reviewing evidence and determining responsibility

Definitions Throughout

• What does “Sex” Mean?
• Biological Sex
• Gender
• Sex Stereotyping
• Sexual Orientation
• Gender Identity
• Formal Complaint
• “A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment”

Review of District Obligations

• List of District Policies to Update – 103/104/247/249/317.1/824
• 103 – Nondiscrimination in School and Classroom Practices
• 104 – Nondiscrimination in Employment and Contract Practices
• 247 – Hazing
• 249 – Bullying/Cyberbullying
• 317.1 – Educator Misconduct
• 824 – Maintaining Professional Adult/Student Boundaries
• Address complainant and provide supportive measures
• Mandatory reporting
• In limited circumstances, offer an Informal Resolution
• Investigation
• Formal grievance process: notice, report, decision, appeal

Why do I need to know these things, especially right now?

• On August 14, 2020, new regulations to Title IX became effective – new regulations require Title IX Coordinators to be trained in specific areas.

What actions constitute “Sex Discrimination” under Title IX?

• Treating one person differently from another based on that person’s sex/gender in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
• Providing different aid, benefits, or services or provide aid, benefits, or services in a different manner;
• Denying any person any such aid, benefit, or service;
• Subjecting any person to separate or different rules of behavior, sanctions, or other treatment

New definitions of Sexual Harassment

• Sexual harassment means conduct on the basis of sex that justifies one of more of the following: Quid Pro Quo, Hostile Environment, or Clery crimes.
• Quid Pro Quo – An employee of the school district conditioning the provision of an aid, benefit, or service of the school district on an individual’s participation in unwelcome sexual conduct;
• Hostile Environment – Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denied a person equal access to the recipient’s education program or activity; or
• Clery Crimes – Sexual assault, dating violence, domestic violence, or stalking.

Quid Pro Quo

• Conduct on the basis of sex
• By an employee of the recipient
• That conduct conditions the provision of an aid, benefit, or service of the recipient on an individual’s participation in sexual conduct
• That sexual conduct is unwelcome

Hostile Environment

• Conduct on the basis of sex
• That is unwelcome
• That a reasonable person has determined is so severe, pervasive, and objectively offensive
• That it effectively denies a person equal access to the recipient’s education program or activity

Defintion of ‘Sex’

Jurisdiction

• Under the new Title IX regulations, if the District does not have jurisdiction it must dismiss the Title IX complaint
• This does not, however, preclude supportive measures or other Code of Conduct violations
• What is the District’s “education program or activity” and why is it important to know?

The Scope of District’s “Education Program or Activity”

• Why is the scope important?
• Which incidents are under the District’s jurisdiction?
• All incidents of Sexual Harassment occurring on-campus;
• All incidents of Sexual Harassment occurring off-campus if either of the two following conditions are met:
• Off-campus incident occurs as part of the recipient’s “operations;” or
• If the recipient exercised substantial control over the Respondent and the context of the alleged Sexual Harassment that occurred off-campus.

Hypothetical #1

• Facts: Mary (a student) alleges that Mr. Gary (a teacher) had sexual relations with her at his house last Sunday.

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• Is this incident under the school district’s jurisdiction?

Hypothetical #2

• Facts: Mary (a student) alleges that Mr. Gary (a teacher) has made repeated remarks to her in the classroom of a sexual nature. In addition, Mary alleges that Mr. Gary told her, after class, that if she performs sexual acts for him, she will pass Chemistry.

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• Are these under the school district’s jurisdiction?

Hypothetical #2a

• Facts: After interviewing Mary, and making mandatory reports of child abuse, the police direct you to stop your investigation.

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• Do you do so? Why or why not?

Title IX Team

• Title IX Coordinator
• Title IX Investigator
• Title IX Decision-Maker

Title IX Coordinator

• Who can be a Title IX Coordinator?
• How one becomes the Title IX Coordinator
• Role of the Title IX Coordinator

The Role of a Title IX Coordinator

• Ensure all Title IX Team Members have been trained appropriately
• Responsible for receiving reports of conduct that could constitute sex discrimination or harassment
• Responsible for receiving formal complaints – signed by complainant
• Respond to formal complaints in a manner that is not deliberately indifferent
• Immediately offer supportive measures to Complainant
• Ensure the grievance process is being followed

Title IX Investigator

• Who can be an Investigator?
• How one becomes the Investigator
• Role of the Investigator

The Role of a Title IX Investigator

• Conduct an impartial investigation;
• Draft an investigative report;

Mandatory Dismissals

The Decision-Maker shall dismiss a formal complaint when, at any point in the investigation, it is determined that even if the facts, as alleged, occurred:

• The conduct would not rise to the definition of Sexual Harassment;
• The conduct did not occur in the recipient’s education program or activity; or
• The conduct did not occur against a person in the United States.

Upon dismissal, the recipient must notify the Complainant and Respondent simultaneously.

Discretionary Dismissals

• The Decision-Maker may dismiss a formal complaint when, at any point in the investigation:
• It is determined that the respondent is no longer enrolled as a student or employed as an employee;
• There are special circumstances which prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations.
• The Title IX Coordinator may dismiss a formal complaint if the Complainant notifies the Title IX Coordinator, in writing, that the Complainant would like to withdraw the formal complaint or any allegations therein.
• Upon dismissal, the recipient must notify the Complainant and Respondent simultaneously.

Hypothetical #3

Mary (student) files a formal complaint against Bobby (student) with the Title IX Coordinator. Mary alleges that Bobby told Mary’s boyfriend, David (student), that Mary has slept with the entire baseball team and David broke up with Mary because of it.

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Should the Coordinator dismiss the complaint?

Hypothetical #4

Bobby (student) files a formal complaint against Mary (student) with the Title IX Coordinator. Bobby alleges that Mary groped him in PE.

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Must the Coordinator dismiss the Complaint if Mary drops out of school a week later, after the Complaint is filed?

Hypothetical #5

Bobby (student) files a formal complaint against Mary (student) with the Title IX Coordinator. Bobby alleges that Mary groped him in PE. After the investigation begins, Bobby explains that he wants to formally withdraw his complaint and does so in writing.

Which statement is true?

The Title IX Coordinator must dismiss the formal complaint against Mary

The Title IX Coordinator may dismiss the formal complaint against Mary

The Decision-Maker must dismiss the formal complaint against Mary

The Decision-Maker may dismiss the formal complaint against Mary

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Retaliation Prohibited

“No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the individual has made a report, complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part…”

Filing a Formal Complaint

• A Complainant must sign the complaint;
• Title IX Coordinator may sign a formal complaint after receiving allegations;
• Must remain free from conflicts of interest and bias, and must serve impartially
• Is not acting as Complainant – does not participate in the investigation and does not submit questions on behalf of the Complainant.

Recordkeeping

• Title IX Coordinator is responsible for maintaining required records;
• Title IX Coordinator is responsible for ensuring training materials are publicly posted on the website;
• Title IX Coordinator should develop a process for required recordkeeping – to include keeping a list of all properly trained investigators and decision-makers

Grievance Procedures - General Requirements

• Treat complainants/respondents equitably; no sanctions until process complete
• No conflict of interest or bias; trained staff
• Presumption that respondent is not responsible
• Reasonably prompt timeframes
• Range of possible sanctions/remedies

Overview of the Grievance Process

1. Title IX Coordinator promptly contact Complainant and institute supportive measures if applicable – this could occur before a formal complaint is filed;
2. Title IX Coordinator explains the process to file a formal complaint and the grievance process that will follow;
3. Title IX Coordinator authorizes an investigation; and
4. Title IX Coordinator provides notice to Complainant and Respondent.

Overview of the Grievance Process

5. Title IX Coordinator offers both the Complainant and Respondent voluntary informal resolution, if applicable
6. Title IX Investigator begins an investigation;
7. Title IX investigator concludes investigation and provides all evidence to Complainant and Respondent and allows each party the opportunity to submit more evidence or provide statements relative to the evidence; and
8. Title IX Investigator drafts an Investigative Report and submits the report to both parties, simultaneously, and to the Title IX Decision-Maker.

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Overview of the Grievance Process

9. Title IX Decision-Maker reviews the evidence and allows both parties to submit relevant questions to either party or witness;
10. Title IX Decision-Maker provides answers to questions, if applicable;
11. Title IX Decision-Maker drafts a Decision regarding responsibility and providing appeal rights; and
12. Appeal Decision-Maker drafts a Decision regarding responsibility if applicable.

Title IX Coordinator: Filing a Complaint

Implementing Supportive Measures

• Title IX Coordinator “is responsible for coordinating effective implementation of supportive measures” to the parties
• What are supportive measures?
• When are they implemented?
• How are they implemented?
• What is their purpose?

Supportive Measures

• Requirement to maintain as confidential any supportive measure provided;
• Requirement to create and maintain records, for a period of seven years, regarding any actions taken in response to report or formal complaint of sexual harassment includes supportive measures;
• If receipt does not provide Complainant with supportive measures, it must document the reason why this was not clearly unreasonable in light of known circumstances.

Consolidation of Formal Complaints

Title IX Coordinator may consolidate formal complaints as to:

• Allegations of sexual harassment against more than one Respondent, or by more than one Complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.

Pausing the Investigation for “good cause”

• While investigating, you may be directed by the Title IX Coordinator to pause your investigation
• What constitutes Good Cause?

Voluntary Informal Resolution

• Title IX Coordinator may need to schedule, facilitate, and participate in a voluntary informal resolution, such as mediation between the parties;
• Specific notice provisions must be provided to the Complainant and Respondent
• Not appropriate to resolve allegations between a student and employee

How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias

• Title IX Coordinator chooses the Investigator and Decision-Maker
• Being impartial is greatly aided by not prejudging facts
• Avoid prejudging the facts
• Conflicts of interest
• Bias—Implicit Bias
• Not relying on sex stereotypes

Hypothetical #6

Who may be impartial?

Answer Choices:

• Superintendent--Respondent was expelled last year and the Investigator is the Superintendent who investigated the expulsion incident and asked the Board to expel respondent for one year
• Band Director—Complainant is in the band and the Investigator is the Band director
• Coach—Respondent is a football player and the Investigator is the Cheer Coach
• None

Hypothetical #7

Which, if any, of the investigators would need to recuse themselves?

Answer Choices:

• Superintendent—Respondent was expelled last year and the Investigator is the Superintendent that investigated the expulsion incident and asked the Board to expel for one year
• Band Director—Complainant is in the band and the Investigator is the Band director
• Cheer Coach—Respondent is a football player and the Investigator is the Cheer Coach
• None

Hypothetical #8

Which, if any, scenario poses a conflict of interest?

• Respondent was expelled last year and the Investigator is the Superintendent that investigated the expulsion incident and asked the Board to expel for one year
• Complainant is in the band and the Investigator is the Band director
• Respondent is a high school teacher and the brother of the Superintendent. Investigator is the High School Principal
• The School Board is authorized to sit as the appellate decision-maker in a case where the Respondent is a daughter to one Board member
• None

Important Considerations: Potential Responses to Trauma

• Delayed reporting
• Difficulty remembering specifics
• Reluctant reporting
• Remaining in a relationship with the respondent
• Failing to identify the accused
• The alleged victim thinks s/he is to blame and somehow s/he welcomed the unwanted behavior

Notice of Allegations to Respondent

• Must include sufficient details known at the time, and with sufficient time to prepare a response before any initial interview.
• Sufficient details include:
• Identities of the parties, if known;
• Conduct allegedly constituting sexual harassment;
• Date/Location of alleged incident, if known.
• Must include a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
• Must include a statement that both parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence.
• Must inform the parties if the recipient has a provision in the code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
• Needs to be supplemented if new allegations are to be investigated

What evidence is relevant to the investigation

• The investigator must provide “any evidence obtained as part of the investigation that is directly related to the allegations raised in a form complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination…”
• In writing the investigative report, the Investigator must “fairly summarize relevant evidence…"
• Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence – and – the fact is of consequence in determining the action.

Hypothetical #9

• Mary alleged that Bobby touched her inappropriately. During Mary’s interview, Mary says this occurred during 5th period math class. Should the investigator notate in the investigative report that Bobby said he was in history class during 5th period?

Hypothetical #10

Which, if any, piece of evidence would need to be turned over to both parties but may not be included in an investigative report?

Answer Choices:

• A picture of Bobby and his identical twin brother
• Information that Bobby is gay – introduced to prove that Bobby would never inappropriately touch a female student
• There is one eye witness to the event, who provided information, and the eye witness is Bobby’s twin brother
• None of the above

Issues of Relevancy - Legally Privileged Information

• Even if the evidence is relevant – it may be excluded from consideration!
• Section 106.45(b)I5)(i): when investigating a formal complaint, recipient:
• “Cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section.”

Issues of Relevancy - Legally Privileged Information

• Section 106.45(b)(1)(x):
• A recipient’s grievance process must…not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such a privilege has waived the privilege.
• Some legally recognized privileges are attorney-client privilege, doctor-patient privilege, and spousal privilege.
• Section 106.45(b)(6)(ii):
• Complainant’s sexual predisposition or prior sexual behavior is not relevant unless…

Hypothetical #11

• Bobby wants to include evidence that Mary has had sexual encounters with 15 different boys in the class.
• Do you include this evidence?

Hypothetical #12

• Bobby wants to include evidence that Mary was having sexual relations with Bobby during the time that he allegedly inappropriately touched her.
• Do you include this evidence?

Consent

The word “consent” is left for schools to define - no required definition in law, regs, or guidance

Introduction to Investigative Techniques

• Review notes and information collected by Title IX Coordinator
• Review Notices to complainant and respondent
• Review policy/Code of Conduct
• Define scope of investigation
• Begin Evidence List
• Begin Witness List
• Craft Questions for Each Witness

Organizing for the Interview

• What should you have with you?
• Allegations
• Investigation Log
• Investigation notes cover sheet
• Prepared questions
• Evidence you may need to reference or show witness
• Policy or Handbook

The Interview

• Identify yourself, your role, and a general outline of what your investigating
• Consider requesting the Title IX Coordinator check in with those who fail to respond or refuse to participate
• Set the Stage
• Begin Broadly
• Freeze Frames
• Ask Follow-Up Questions
• Credibility
• Closing the Interview
• Confidentiality

After the Investigation

• Update investigation log
• Review notes, make corrections/clarifications
• Update witness list
• Update list of evidence to be obtained
• Write down questions to ask other witnesses
• Consider whether appropriate to send email
• Physical Evidence

Inspection and Review of Evidence

• Provide ALL Evidence to both parties and advisors
• Include everything directly related to allegations, even if you don’t expect decision maker to rely on it
• Allow at least 10 days to review
• Allow written response
• Follow up where necessary
• Consider responses when preparing report

Create Investigative Report

• Fairly summarize relevant evidence
• No determination
• Provide to parties and advisors
• Allow at least 10 days to review

Investigator Takeaways

• Study your updated grievance procedures
• Know the definition of sexual harassment and keep the policy language in mind as you interview parties and witnesses
• Identify when/if another policy such as bullying/cyberbullying is in play
• Make sure you understand potential biases

Investigator Takeaways

• Trauma may affect how someone responds to an incident
• Prepare for your interview with questions and statements
• Start with open-ended questions
• Obtain any documentary evidence that you can

What Questions are relevant in the Decision Process?

• The Decision-Maker must afford each party the opportunity to submit written relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, yet limited, follow-up questions for each party – and make judgement call regarding whether questions are relevant and explain the reasoning for excluding questions;
• Questions are relevant unless specifically excluded or the question does not directly relate to the issue at hand:
• Complainant’s sexual predisposition or prior sexual behavior is not relevant unless…

Hypothetical #13

Mary alleged that Bobby touched her inappropriately. During Mary’s interview, Mary says this occurred during 5th period math class. Bobby wants to ask the following question to Mary: On the day I allegedly inappropriately touched you, was I in Math class?

Is this a permissible question?

Hypothetical #13a

• Bobby alleges that he could not have touched Mary because he was not in 5th Period Math that day. Mary wants to ask the following question to Bobby: Don’t you often skip your 5th Period History class?
• Is this a permissible question?

Hypothetical #13b

Mary’s witness and class-mate, Sue, told the investigator that she saw Bobby inappropriately touch Mary. Bobby wants to ask the following question to Sue: Haven’t you alleged sexual harassment against every guy you’ve slept with in the past year?

Is this a permissible question?

Emergency Removal of Students

• Recipient can issue emergency removals of students from the recipient’s education program or activity, provided that it:
• Undertakes an individualized safety and risk analysis;
• Determines that an immediate threat to the physical health or safety of any student/individual arising from the allegations justifies removal; and
• Provides Respondent with notice and opportunity to challenge decision immediately.
• Emergency removals cannot be used to modify any rights under the IDEA, Section 504, or Americans with Disabilities Act.

“Emergency Removal” (Administrative Leave) of Employees

• Recipient may place any employee on paid administrative leave during the course of an investigation – subject to CBAs and Board Policies.

Standard of Evidence

• Preponderance of the Evidence
• Clear and Convincing Evidence

Issuing a Written Determination

• A written determination must include, at a minimum:
• Identification of the allegations potentially constituting sexual harassment;
• A description of the procedural steps taken;
• To include any notifications made to parties, interviews held, site visits, methods used to gather other evidences, and hearings held.
• Findings of fact supporting the determination;
• Conclusions regarding the application of the recipient’s code of conduct to the facts;
• A statement of, and rationale for, the result of each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
• The recipient’s procedures and bases for the complainant and respondent to appeal

Weighing the Evidence

• Remember, you must base your decision solely on the relevant evidence obtained. No outside knowledge/evidence is allowed! Do not consider the potential impact of your decision on either party.
• The volume of evidence, number of witnesses, or Title of a party does not determine responsibility.
• The strength of the evidence and credibility of the witnesses/parties are most important.

Hypothetical #13c

• Bobby submits 95 pages of relevant evidence that he did not inappropriately touch Mary. Mary offers her written statement and an eye-witness.
• Since Bobby submitted 95 pages of relevant evidence and Mary only submitted her testimony and that of a witness, how should the decision-maker find, as to sexual harassment?

Hypothetical #13d

• You, as the Decision-Maker, know of prior allegations against Bobby that resulted in his expulsion last year. You specifically know that Bobby has a history of not being able to keep his hands to himself.
• Can you rely on this information when determining responsibility?

Hypothetical #13e

• In reviewing the evidence, you learn that Mary identified Sue, her best friend, as an alleged eye-witness. After reviewing Sue’s testimony, you are unsure if her account of a particular piece of evidence is accurate. You are at a 50/50 split on whether you believe Sue’s story.
• Should you accept Sue’s testimony?

Determining Credibility

• Credibility is determined fact by fact, not witness by witness!
• It is your job to determine where the truth lies when there is a conflict
• What to consider:
• Reasonableness or unreasonableness of the testimony;
• Probability or improbability of the testimony;
• Motivation for testifying;
• Bias
• Consistent statements – between a witness’s own statements and other’s statements;
• Memory recall;
• Implausibility, ulterior motives, and lack of credibility.
• What NOT to consider:
• The fact that a person is the complainant;
• The fact that a person is the respondent;

Hypothetical #13f

• In reviewing the evidence, you learn that Mary identified Sue, her best friend, as an alleged eye-witness. After reviewing Sue’s testimony, you are unsure if her account is accurate.
• Can you take into consideration that Sue is best friends with Mary?

Hypothetical #13g

• Sue alleges that she saw Bobby walking the hallways during 5th period. Bobby alleges that he was in his class the entire time. (No other student was interviewed and there was a substitute teacher who does not recall if Bobby left or not – this fact is relevant because Mary alleges that Bobby inappropriately touched her during 5th period).
• Can you meet with Sue to test her memory in order to determine her credibility?

Fact Finding

• Separate the undisputed facts from the disputed facts;
• Undisputed facts = Findings of Fact
• Determine which disputed facts are relevant;
• Resolve the relevant disputed facts = Findings of Fact

Making a decision

• Review Policy 103/104;
• Review the definition of Sexual Harassment;
• Breakdown the definition in to elements;
• Review each and every element;
• Sort all of your evidence by the element;
• Assess the evidence and apply all of the evidence to each and every element;
• When there is a conflict between testimony, determine based on credibility;
• If you have a preponderance of the evidence that each element is present, you have a policy violation;
• If you do NOT have a preponderance of the evidence that each element is present, you do NOT have a policy violation;
• If you have a preponderance of the evidence that one or more element is NOT present, you do NOT have a policy violation.

After the Decision

• Written notice of possible discipline;
• Opportunity to respond;
• Appeal rights
• If the District allows a party to appeal the sanction, the District must provide both parties that opportunity
• Before any sanction that would constitute a change of placement for a child with a disability, ensure compliance with IDEA and Section 504 (manifestation determination, continuation of services as applicable, etc.)

Hypothetical #13h

• After reviewing and weighing all of the evidence, and making appropriate judgement calls on credibility, you determine that Bobby IS responsible for Sexual Harassment. As a disciplinary sanction, you determine that Bobby will be expelled for 1 year.
• Is this inappropriate sanction for the decision-maker to make?

Determination and After

• Title IX Coordinator (unless done so by the Decision-Maker) will need to disseminate the written determination to the parties simultaneously;
• Title IX Coordinator is responsible for effective implementation of any remedies;

Opportunity to Appeal

• The Appellate Decision-Maker cannot be the Initial Decision-Maker, Title IX Coordinator, or Investigator;
• The Appellate Decision-Maker must be trained in the same manner as the Initial Decision-Maker;

Bases for Appeal

• Procedural irregularity that affected the outcome of the matter;
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
• The Title IX Coordinator/Investigator/Decision-Maker(s) had a conflict of interest or bias for or against Complainant(s) or Respondent(s) generally, or the individual Complainant(s) or Respondent(s) that affected the outcome;
• Any additional bases that is offered equally to both the Respondent and Complainant (for example, the sanction).

Handling Appeals

• The Appellate Decision-Maker cannot be the Initial Decision-Maker, Title IX Coordinator, or Investigator;
• The Appellate Decision-Maker must be trained in the same manner as the Initial Decision-Maker;

Appellate Procedure

• Offer the appeal to both parties;
• Let both parties know when an appeal has been filed;
• Give both parties a reasonable and equal opportunity to submit a written statement in support of or challenging the appealed decision;
• Issue a written determination describing the result of the appeal and the rationale for the result;
• Provide the written decision simultaneously to both parties.

Intersection between Title VII and Title IX

• Employees have the same rights as Students under Title IX
• Employees also have rights under Title VII
• Title VII: “severe OR pervasive” vs. Title IX: “severe, pervasive AND objectively offensive”
• Title VII does not require 10 days to review evidence and 10 days to respond to report

Hypothetical #14

Mary tells Ms. Mabel, her favorite teacher, that Mr. Gary has made uncomfortable statements to her in class, and likes to touch her shoulder. Mary is so uncomfortable that she wants to know if she is allowed to drop Mr. Gary’s class and switch her schedule around, she can move into Ms. Mabel’s class (the only other offering). Ms. Mabel informs you, the Title IX Coordinator of everything that has occurred.

You call Mary into your office to discuss sexual harassment. Mary is adamant that she doesn’t want to file a formal complaint, she just wants to switch her schedule around.

Do you offer her supportive measures?

Same facts, do you authorize an investigation even though Mary refuses to sign?

Hypothetical #14a

Same facts – except, you know that there have been other allegations made against Mr. Gary over the years.

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Are you required to sign the Complaint even though Mary will not? ��

Hypothetical #14b

Same facts – you sign the complaint and authorize an investigation. After providing notice to both Mary and Mr. Gary, Mary informs you that she is worried that Mr. Gary will “poison” the other teachers against her (because he has been Teacher of the Year for the past 10 years and is beloved by everyone). Mary is worried about peer retaliation and that Mr. Gary will be angry with her and embarrass her in front of everyone.

Which, if any, of the following are appropriate supportive measures to be offered?

Counseling;

Administrative Leave for Mr. Gary;

Emergency Removal for Mary;

Directive to both Mary and Mr. Gary to not have contact with one another;

All of the Above;

None of the Above

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Hypothetical #15

You are the Principal of the High School – not too long after you arrive at work on a wonderful sunny Monday morning, you receive a call from an irate mother. Mom tells you that she is suing the District and you personally because her daughter attempted suicide over the weekend. Mom tells you that her daughter, a 15-year-old freshman in your building, was sexually assaulted by Respondent, an 18-year-old senior in your building. The sexual assault occurred numerous times within the school over the course of the last 3 months. Complainant Female thought that she was pregnant, so she attempted suicide. The Respondent will be coming to school today.

How do you handle the allegation?

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Hypothetical #16

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You are a Building Principal. Mom of Student A calls and tells you that over the course of the last semester, Student B has been inappropriately touching Student A. She alleges that Student B touches Student A’s upper thigh, buttocks, breasts, and private areas. Student A has asked Student B to stop but Student B refuses.

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Hypothetical #16a

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After discussing Title IX with you, Mom wants to know why request a Title IX investigation and how are the outcomes different than going the regular disciplinary route.

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Hypothetical #17

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A group of female students complain about a male student. Specifically, the Building Principal informs the Superintendent that he was told that a male student walked over and grabbed a female student’s butt—the female student slapped the male student and male student proceeded to tell the female student to “stop being a bitch.”

Is this incident supposed to be reported to the TIX Coordinator?

Can the Principal suspend the male student for his conduct?

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Hypothetical #18

Student A reported that he went into the bathroom after lunch and that Student Boy B followed him into the bathroom. Student A said that Student B called him over to the urinals. When Student A approached Student B, Student B pulled Student A’s pants down. Student A alleged that Student B performed oral sex on him while touching his butt. Student A alleges that Student B also touched his penis in the lunchroom on the same day, after the bathroom incident.

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Is this Title IX? If so, under what definition?

Middle School Boy B is a student with Autism and has an IEP. Will this fact affect anything? If so, why? If not, why?

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Hypothetical #19

Two middle school students—a male and female – were standing in line for lunch. The male student was standing behind the female student and grazed her butt with his lunch tray. When the female student turned around, the male student giggled and said “sorry.” The female student goes to the cafeteria working saying she felt extremely uncomfortable and wants to go home. While at home, she tells her parents and her parents call the police. You receive a call from the police alerting you to the situation.

Is this Title IX?

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Hypothetical #20

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A male student with an IEP has been making very inappropriate comments to another boy in the locker room after gym class. He has also been showing the other boy pornographic images on his phone making the boy feel very uncomfortable and anxious.

He comes to you with this information – what are your next steps?

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Hypothetical #21

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Kendra and Samantha are 9th graders who snuck into a party held by Chris, a 12th grader, on a Saturday night. After the party, Kendra tells Samantha she was cornered by Chris and that he touched her in a way that made her uncomfortable. Samantha becomes worried about Kendra and, on Monday, tells you about the incident.

What are your next steps?

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Hypothetical 22

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

Hypothetical 23

Hypothetical

Question 1

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

Is this a Title IX issue?

Hypothetical 23

Hypothetical

Answer 1

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

Yes, this is a Title IX issue. Sharing indecent photos of students could constitute sexual harassment and falls under the purview of the regulations.

Hypothetical 23

Hypothetical

Question 2

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

The Title IX Coordinator gets involved in this matter. What is one of the first steps she should take based on the unique characteristics of the students involved?

Hypothetical 23

Hypothetical

Answer 2

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

She should reach out to a member of Eric’s IEP Team.

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The 2024 Title IX regulations require that the IEP Team be involved in the Title IX process if it involves a student with special education needs. The IEP Team will work alongside the Title IX Coordinator to ensure that their special education needs are considered at each stage of the process.

Hypothetical 23

Hypothetical

Question 3

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

The Title IX Coordinator discovers that the boy who took the photo of Eric has an IEP or a Section 504 Plan. Should the Coordinator reach out to the boy’s IEP Team?

Hypothetical 23

Hypothetical

Answer 3

A group of middle school boys are in the bathroom, including Eric, who has autism. The boys began taunting Eric and convince him to pose for photos. Eric, not understanding that he is being taunted, poses for goofy photos. One student takes it a step farther and tells Eric to moon the camera. Eric drops his pants, and the boys take a photo of his bottom, mooning the camera. The boys, thinking the photo is funny, post it to Snapchat. By the end of the day the photo has been screenshot and shared by other students to Twitter and Instagram. It circulates widely around the student body, effectively going viral.

Yes. The requirement that the IEP Team be involved is for the benefit of every student is a party to the incident, not just the Complainant.

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Additionally, a manifestation determination will be needed if it is determined that this student should receive discipline for his actions and if that discipline will constitute a change of placement.

Hypothetical 24

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Hypothetical 24

Hypothetical

Question 1

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Do dress codes fall under Title IX?

Hypothetical 24

Hypothetical

Answer 1

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Yes. Title IX protects students from discrimination based on their gender, including differential treatment based on sex stereotypes and sex characteristics.

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Dress codes that place undue burdens on males or females because of their sex could violate Title IX. Additionally, heavy-handed enforcement of the dress code for girls rather than boys (sometimes due to more restrictions on girls’ clothing in the dress code) can act as an effective denial of their education and a violation of Title IX.

Hypothetical 24

Hypothetical

Question 2

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Does the first provision, “Girls shall not wear crop top shirts or any shirt that shows their abdomen,” violate Title IX?

Hypothetical 24

Hypothetical

Answer 2

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Yes. Title IX protects students from discrimination based on their sex. Specific rules in a code of conduct targeted to a student’s sex could be a violation of Title IX.

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Here, the prohibition against crop tops is specifically for girls. Although less common, boys do sometimes wear crop top shirts. Best practice would be to ban crop tops for all students, rather than just for girls.

Hypothetical 24

Hypothetical

Question 3

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Does the second provision, “boys may not wear skirts,” violate Title IX?

Hypothetical 24

Hypothetical

Answer 3

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Yes. Title IX protects students from discrimination based on their sex. Specific rules built on sex stereotypes is likely a violation of Title IX.

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Here, the sex stereotype is that “girls wear skirts and boys wear pants.” This rule ensures that student behavior conforms to a stereotype based on their sex.

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Additionally, the 2024 regulations prohibit discrimination based on gender identity. A male student who is wearing a skirt may identify with a gender different from the one he was assigned at birth. Such a rule may unintentionally act as discrimination based on his gender identity.

Hypothetical 24

Hypothetical

Question 4

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Does the second provision, “girls’ shorts must have an inseam of at least four inches,” violate Title IX?

Hypothetical 24

Hypothetical

Answer 4

You are a Director of Student Services. You have just reviewed your colleague’s edits to the dress code for the upcoming school year. You feel some concern about the following requirements:

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1. Girls shall not wear crop top shirts or any shirt that shows their abdomen.
2. Boys may not wear skirts.
3. Girls’ shorts must have an inseam of at least four inches.

Yes. Title IX protects students from discrimination based on their sex. Specific rules in a code of conduct targeted to a student’s sex could be a violation of Title IX.

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Here, the prohibition against certain length of shorts is specifically for girls. Although less common, boys do sometimes wear short shorts. Best practice would be to establish a certain length of shorts for all students, rather than just for girls.

Hypothetical 25

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

Hypothetical 25

Hypothetical

Question 1

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

Is moving Student A to the later class period permissible under Title IX?

Hypothetical 25

Hypothetical

Answer 1

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

It depends. Discipline for sexual harassment or discrimination cannot be issued against any potential Respondents until the Title IX process has been completed. Under the Title IX regulations, students who are respondents to a complaint of sexual harassment or discrimination have the right to the full Title IX grievance procedure before they are disciplined. Instead, confidential supportive measures can be put in place to mitigate the situation while the Title IX grievance procedure is underway.

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Therefore, it depends on if the Respondent and his family view the change in math class as discipline or a supportive measure.

Hypothetical 25

Hypothetical

Answer 1

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

If the family and the student see moving math classes as discipline/punitive, then changing classes may be impermissible. For example, the student may feel like they are being separated from their favorite math teacher, or the family may feel that he won’t do as well academically in the other class.

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But, if the family agrees with you that Students A and B need to be separated, and they agree with the change in schedule, then it may constitute a supportive measure. Supportive measures must be kept confidential. The purpose of a supportive measure is to put an immediate stop to a situation of sexual harassment or discrimination and give both students access to the educational benefits and activities.

Hypothetical 25

Hypothetical

Question 2

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

What if Student A does not want to move math classes. What are some examples of other supportive measures you can implement to stop the sexual harassment and still give students access to their educational activities?

Hypothetical 25

Hypothetical

Answer 2

You are a Building Principal who is dealing with a situation where Student A touched Student B inappropriately in their 2^nd period math class. You have referred it to the Title IX Coordinator to speak to the families and begin the Title IX procedure. In the interim you want to move Student A (the alleged Respondent) to another math class. There is an identical class during Student A’s 5^th period study hall. You could move the student into that class without it disrupting his progress in the course or impacting the rest of his schedule.

You can pursue any of the following:

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• Work with the math teacher to ensure the students never work in a group together.
• Seat the students on opposite sides of the classroom from each other.
• Implement an aid in the classroom to ensure the students do not have access to each other.
• Offer alternative class options to Student B (alleged Complainant) such as a change of class or online education.

Questions?