�New Developments in Title IX���

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MICHAEL K. LAMBERT, ESQ.

MLAMBERT@SHAWPERELSON.COM

SHAW, PERELSON, MAY & LAMBERT, LLP

SEPTEMBER 30, 2025

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PUTNAM NORTHERN WESTCHESTER BOCES

Areas to be Addressed Today

• The Landscape
• Title IX – The applicable Federal Rules
• Sexual Harassment – The applicable State Rules
• Conflicts between State and Federal Law
• Athletic Facilities
• Case Studies

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The Landscape

• With the change in federal administrations, issues that seemed well settled have become obscured by a number of President Trump’s Executive Orders on Diversity, Equity, and Inclusion (DEI) under Title VI of the Civil Rights Act of 1964 and federal Title IX gender identity matters.
• The federal positions on these issues often conflict with New York State laws, regulations, and guidance, including provisions for gender identity rights in the New York State Human Rights Law and the New York State Education Law, such as the Dignity for All Students Act (DASA).
• New York’s public schools find themselves caught in the crossfire between the strong public policy expressed through presidential executive orders and changing enforcement priorities, and state laws, regulations, and guidance documents, which are, in many cases, directly opposed to federal initiatives.

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Undoing the U.S. Department of Education

• H.R. 899 and S. 1148 introduced in April 2025 proposed the termination of the U.S. Department of Education effective 12/31/26.

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• H.R. 2456 “The Orderly Liquidation of the Department of Education Act”, proposes an Office of Education within the Health and Human Services Department.
• This would require a Senate supermajority of 60 votes to effectuate.

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• H.R. 433 proposes to prevent any Education Department funds from being used to downsize or restructure the agency.

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USDOE - Downsizing vs. Elimination

• On July 14, 2025, the US Supreme Court granted the Trump administration’s request to stay an Order by a federal judge in Massachusetts that would require the Department of Education to reinstate nearly 1,400 employees who were fired earlier this year as part of the department’s efforts to reduce the size of its workforce.
• In a brief unsigned ruling, the Court blocked the lower court’s order issued in May by U.S. District Judge Myong Joun, who had concluded that the Trump administration’s “true intention is to effectively dismantle the Department” despite lacking the power to do so.
• Justice Sonia Sotomayor dissented, in a 19-page opinion that was joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor called the court’s decision “indefensible,” writing that it “hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority,” she said, “is either willfully blind to the implications of its ruling or naïve, but either way the threat to our Constitution’s separation of powers is grave.”

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Educational Institutions Affected by new Federal Initiatives

• For New York, billions of dollars in federal funds are at stake if there is no reconciliation with the federal government or success in the courts regarding approaches to addressing discrimination matters.
• The federal government has been aggressive with the Ivy League colleges, especially Harvard University, Columbia University and the University of Pennsylvania, regarding D.E.I. and Title IX compliance, with UPenn reaching a settlement to avoid the loss of $175 million in federal funds.

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When are Federal Funds at Risk?

• The February 14, 2025 “Dear Colleague Letter” forewarns of the loss of federal funding if school district policies and actions fail to comply with federal civil rights laws.
• The United States distributes federal monies to state and local governments under the Spending Clause of the United States Constitution:
• Article I, Section 8, Clause 1:
• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.
• Complaints may be filed with the Office of Civil Rights via a form available on the federal website.
• OCR has a number of additional enforcement tools in the event that they open an investigation into the District’s practices and policies.

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When are Federal Funds at Risk?

• Under the Spending Clause the federal government may establish conditions for the use of federal grants in aid.
• School Districts receive the following grant monies under the Spending Clause:
• Title I, Title II, Title VI, Title IX, Section 504 and IDEA
• President Trump warns that all federal program aid could be lost based upon any violation of federal law.

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Title IX Regulations - 2020 vs 2024

• On April 19, 2024, the DOE published the final version of the 2024 Regulations (the “2024 Final Rule”), which ultimately went into effect on August 1, 2024.
• The 2024 regulations redefined “sexual harassment” as “sex-based harassment” and broadened the scope of sex discrimination to include sex stereotyping, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

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2024 Title IX Regulations Litigation

• Shortly after the 4/19/24 release of the 2024 final regulations, a number lawsuits seeking to block its implementation and enforcement were initiated by State Attorney Generals.
• A number of federal courts across the country issued preliminary injunctions, preventing the implementation and enforcement of the 2024 Final Rule in certain schools.
• As the 2024-2025 school year began, many school districts across the country were operating under the 2024 Regulations, while other school districts were still using the 2020 Regulations.

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Title IX Regulations-Revert to 2020 Version

• On January 9, 2025, a U.S. District Court for the Eastern District of Kentucky found that the 2024 Final Regulations exceeded the US DOE’s authority under Title IX, violated the First Amendment as well as the Spending Clause of the U.S. Constitution, and were unlawfully vague, overbroad, and arbitrary.
• In defending the 2024 Final Regulations, the DOE relied on the U.S. Supreme Court decision Bostock v. Clayton County, 590 U.S. 644 (2020), an employment law case which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexuality or gender identity.

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Title IX Regulations-Revert to 2020 Version

• The Eastern District of Kentucky court disagreed with the DOE that Bostock’s expansion of Title VII protections also applied to Title IX. The court found that Title IX’s prohibition of discrimination “on the basis of sex” is more limited than the language in Title VII, and therefore the 2024 Regulations exceeded Title IX’s statutory authority.
• The US DOE had argued that even if the challenged portions of the 2024 Final Rule were found to be invalid, the proper remedy would be to sever them (i.e., halt only the implementation of those specific sections).
• However, the Court held that because “the definition of discrimination ‘on the basis of sex’ lies at the heart of Title IX and permeates virtually every provision of the law,” the challenged provisions accordingly “fatally taint the entire rule” and concluded that “the entire [2024] Final Rule and corresponding regulations are invalid and must be set aside.” 

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2020 Changes in Federal Regulations

• These Regulations were enacted through the formal Federal rulemaking process that is primarily governed by the Administrative Procedure Act.
• This process involves the publication of a Notice of Proposed Rulemaking in the Federal Register, followed by a 30-60 day comment period.
• After the comment period closes, the agency reviews all comments and conducts a comment analysis.
• Approximately 120,000 comments were submitted in response to the Notice of Proposed Rulemaking
• The final Regulations were released by OCR 6-6-20 with an effective date of 8-14-20
• New definitions for key terms
• New general standards under Title IX
• New procedural due process requirements upon Title IX grievance procedures
• New compliance requirements, including those relating to the function of Title IX Coordinators

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Title IX Sexual Harassment:

SEXUAL HARASSMENT MEANS CONDUCT ON THE BASIS OF SEX THAT SATISFIES ONE OR MORE OF THE FOLLOWING:

An employee conditioning the provision of an aid, benefit, or service of the school district on an individual’s participation in unwelcome sexual conduct (quid pro quo, which is sexual harassment per se)

Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school district’s education program or activity; or

“Sexual assault” (as defined in the Clery Act [20 U.S.C. 1092(f)(6)(A)(v)]); or “dating violence,” “domestic violence,” or “stalking” (as defined in the Violence Against Women Act (VAWA)[34 U.S.C. 12291(a) at sub-paragraphs (10),(8), & (30), respectively]), which is sexual harassment per se. 34 C.F.R. §106.30

PER SE HARASSMENT DOES NOT REQUIRE SCRUTINY INTO THE SEVERITY OR IMPACT OF CONDUCT.

THE CLERY ACT DEFINES SEXUAL ASSAULT TO MEAN “AN OFFENSE CLASSIFIED AS A FORCIBLE OR NONFORCIBLE SEX OFFENSE UNDER THE UNIFORM CRIME REPORTING (“UCR”) SYSTEM OF THE FEDERAL BUREAU OF INVESTIGATION.” THE FBI UCR DEFINES SUCH OFFENSES TO INCLUDE RAPE, STATUTORY RAPE, FONDLING, INCEST, SODOMY, AND SEXUAL ASSAULT WITH AN OBJECT.

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The Players: Title IX Coordinator

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• Title IX regulations have always required school districts to designate an individual or individuals to coordinate efforts to implement the law. See Form 1.
• Now the Title IX Coordinator must be further empowered: school districts must “authorize” this individual to coordinate the school district’s compliance efforts.
• The Title IX Coordinator should evaluate formal complaints to determine whether the allegations, if proven, would or would not constitute sexual harassment as defined by these regulations and, either assign the complaint to an investigator or dismiss the complaint (or those parts of the complaint that would not constitute Title IX violations, even if proven) in accordance with the regulations.
• The Title IX Coordinator may dismiss a formal complaint if the complainant provides written notice of withdrawal, if the respondent is no longer a student or employee of the school district, or if specific circumstances preventing the gathering of evidence warrant dismissal.
• It is required that the individual be known as the “Title IX Coordinator.”

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34 C.F.R. §§ 106.8(a), 106.45(b)(3) & 106.45(b)(7)(iv)

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Title IX Coordinator – Primary Duties

• Policy oversight
• Training & education
• Complaint management
• Timely and effective implementation of any remedies.
• Record-keeping
• Communication & accessibility

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The Players (cont.): Investigators

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• Must be trained to gather inculpatory and exculpatory evidence objectively and impartially.
• Must be trained to assess testimony and evidence for credibility and relevance and to create reports that fairly summarize such evidence.
• CAN be the Title IX Coordinator.
• Prepares investigative report (no conclusions).
• Cannot serve as decision-maker.
• 34 C.F.R. § 106.45(b)(iii)

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The Players(cont.) Decision Makers

• Must be trained on the definition of sexual harassment under Title IX
• Must also be trained on issues of relevance of questions and evidence, including when questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant.
• Must apply the standard of proof selected by the District (preponderance or clear and convincing).
• Must prepare a written determination in accordance with District policy and Title IX regulations.
• There is a separate decision maker for appeals.

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The Players (cont.): Appeal Decision Makers

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• The decision maker for an appeal may not be the Title IX coordinator, investigator, or initial decision maker, does not have a conflict of interest or bias against complainants and respondents generally or the particular complainant and respondent, and receives training.
• Independent from prior stages
• Reviews determination on limited grounds
• Issues final written appeal outcome
• 34 C.F.R. § 106.45(b)(8)

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The Parties: Who can Be a Complainant?

• Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment. 34 C.F.R. §106.30(a).
• Must be participating in or attempting to participate in the recipient’s (e.g., school district’s) education program or activity.
• The Complainant is not necessarily the reporting party!
• A third-party (such as a parent) may report or otherwise act on behalf of a complainant, but any third party, other than a Title IX Coordinator, is precluded from actually filing a formal complaint and is not called the Complainant.
• The Complainant may not be referred to by other labels such as “victim” “alleged victim” or “accusing party.”
• A complainant’s identity may be kept confidential, even from a respondent, unless disclosure is necessary to provide supportive or remedial measures (e.g. a no-contact order).
• A complainant may file a formal complaint with the Title IX coordinator by mail, email, or other method made available by the school district. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity at the school district with which the formal complaint is filed.

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Sexual Harassment in the Workplace

• Where can it occur?
• ANYWHERE that employees are fulfilling work responsibilities, in any context with a nexus to work

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• At school/office
• At school-related events
• At conferences
• At hotels
• At parties, even off-site
• At any locations considered extensions of the work environment
• Online
• Texts, email, social media
• Must be in the United States

Who Can Be a Respondent?

• Under the 2020 Title IX federal regulations (34 C.F.R. Part 106), the rules use the term “respondent” to mean any individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment as defined by Title IX. A few key points:
• Scope of “Respondent”
• A respondent must be an individual (not just an institution or entity).
• This typically includes:
• Students (K-12 or higher education)
• Employees (teachers, administrators, staff, faculty)
• Other individuals under the institution’s control (such as volunteers, or contractors if their conduct falls within the school’s education program or activity)

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Who Can Be a Respondent?

• Jurisdictional Requirement
• The conduct must have occurred within the school’s education program or activity, which includes locations, events, or circumstances where the school exercises substantial control over both the respondent and the context.
• The respondent must be subject to the school’s disciplinary authority. If the institution lacks such authority (for example, a stranger unaffiliated with the school), the matter may not proceed as a formal Title IX case, though other policies may apply.
• Students and Employees
• For K-12 districts and colleges/universities, respondents can be both students and employees.
• Schools are obligated to follow Title IX grievance procedures regardless of whether the respondent is a peer, staff member, or faculty member.

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Who Can Be a Respondent?

• Independent Contractors & Third Parties
• The regulations do not explicitly exclude independent contractors.
• If an independent contractor is someone over whom the school has control (e.g., a coach, bus driver, consultant working in the school program), and the alleged conduct occurs in the school’s program or activity, that person can be treated as a respondent.
• If the school cannot impose discipline or corrective action (for example, if the individual is completely outside school control), Title IX procedures may not apply—though the school might still address the issue through contractual remedies or non-Title IX policies.

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Actions Upon Receipt of Information Suggesting a Possible Title IX Violation

• Intake with Complainant - See Form 3
• Formal Complaint Form – See Form 5
• Do the facts, if true, meet the definition of sexual harassment?
• Is a formal complaint being filed by someone authorized to file it (including the Title IX Coordinator)?
• Are supportive measures appropriate?
• Is an informal resolution permitted and appropriate?
• See Title IX Coordinator Quick Reference Checklist

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What are Supportive Measures ?

• Supportive Measures means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. 34 C.F.R. §106.30(a)
• Title IX Coordinators are responsible for coordinating the effective implementation of supportive measures,
• Such measures must be maintained as confidential, to the extent that confidentiality would not impede the provision of supportive measures.
• Should be designed to restore or preserve equal access to the educational program or activity without unreasonably burdening the other party.
• Examples of supportive measures include counseling, course modifications, schedule changes, and increased monitoring or supervision.
• Supportive measures should be designed to restore or preserve equal access to the education program or activity without “unreasonably” burdening the other party. A supportive measure that completely removes a respondent from an activity would likely be considered punitive.
• The concept of supportive measures is distinct from that of remedies.

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Employee Assistance Program – Supportive Measures

• Suggested referrals to complainant, respondent and any other employees who are effected.
• Could include counseling, coaching, and/or online training.
• Emergency Removals – See Form 4
• Supportive Measures Form – See Form 6

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What is the Grievance Process?

Grievance Process means the detailed response to a formal complaint now mandated by Title IX regulations. 34 C.F.R. §106.45(b)

Mandated Procedures:

• The grievance process must incorporate the following procedural requirements:
• Written notice. Upon receipt of a formal complaint, a school must provide written notice to all known parties in sufficient time to give the respondent time to prepare a response before an initial interview. Written notice must include:
• Notice of the allegations, including sufficient detail (including names of known parties, the conduct alleged to be sexual harassment, and the date and location of the conduct, if known) to allow the respondent to prepare a response;
• If, during the course of an investigation, allegations that were not included in the original written notice arise and must be investigated, notice of those additional allegations must also be provided in writing to the known parties.
• Explanation of the grievance process, including any options for informal resolution;
• A statement that the respondent is presumed not responsible for the alleged conduct and that responsibility will be determined at the conclusion of the grievance process;
• Notice of the parties’ right to have an advisor (who may be, but is not required to be, an attorney) and to inspect and review evidence; and
• Notice of any provision in the code of conduct that prohibits knowingly making false statements or providing false information.

34 C.F.R. § 106.45(b)(2)

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The Process Begins with a Formal Complaint

Formal Complaint means a document filed by a complainant or signed by a Title IX Coordinator alleging sexual harassment against a respondent and requesting an investigation of the allegation of sexual harassment. 34 C.F.R. §106.30(a)

• A complainant must be participating or attempting to participate in the education program or activity at the time of the filing of a formal complaint.
• Formal complaints may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, or by any other method designated by the school.
• A formal complaint is not required for implementation of supportive measures.
• There is no time limit on filing a formal complaint (as long as the complainant is a current or prospective student).
• Formal complaints are not required to contain a detailed statement of facts/allegations.
• Formal complaints may not be filed anonymously.
• The absence of a formal complaint does not relieve a school to investigate or otherwise respond in a manner that is not deliberately indifferent if it has actual knowledge of allegations, including providing supportive measures to a complainant and, if appropriate, filing a formal complaint on behalf of a complainant (if an investigation is deemed necessary).
• A third party reporter may not file a formal complaint, but a Title IX coordinator may sign a complaint, thus triggering an investigation, in order to ensure that the school district does not respond to sexual harassment with deliberate indifference. In some cases, this may entail implementing a formal grievance procedure over the complainant’s objections.
• A formal complaint will give rise to a mandatory grievance process.

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When Will a Complaint Be Dismissed?

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A formal complaint MAY be dismissed, and in some circumstances MUST be dismissed . Dismissal does not preclude taking action under laws or policy, including the Code of Conduct. If a complaint is dismissed, written notice must be promptly provided to both parties simultaneously.

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Mandatory Dismissal: A complaint must be dismissed if the allegations:

• would not constitute sexual harassment as defined in section 106.30, even if proved; or
• did not occur in the school’s program or activity; or
• did not occur against a person in the United States.

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When Will a Complaint Be Dismissed?

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Discretionary Dismissal: A complaint may be dismissed if:

• The complainant notifies the Title IX coordinator at any time that s/he wishes to withdraw the complaint or an allegation;
• The respondent’s enrollment or employment ends; or
• “specific circumstances” prevent the district from gathering evidence sufficient to reach a determination.
• OCR’s commentary to the regulations includes the passage of several years between a formal complaint and the alleged conduct and a complainant ceasing to cooperate with the grievance process as examples of “specific circumstances” permitting dismissal.

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Dismissal of Formal Complaints

• Dismissal does not preclude taking action under other laws or policy, including enforcing the Code of Conduct
• If a complaint is dismissed, written notice must be promptly provided to both parties simultaneously, including the reasons for the dismissal.
• Notice of Dismissal – See Form 7

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When May Multiple Complaints Be Consolidated?

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• Consolidation : Consolidation of formal complaints
• Where there are complaints against more than one respondent;
• Where there are complaints by more than one complainant against one or more respondents; or
• by one party against another party;
• where the allegations arise out of the same facts or circumstances.

34 C.F.R. § 106.45(b)(4)

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Informal Resolution

• Offering to facilitate an informal resolution process is prohibited unless a formal complaint of sexual harassment is filed.
• At any point during the formal complaint process, a school may offer to facilitate an informal process that does not require a full investigation IF:
• both parties are provided a written notice of rights;
• both parties provide written, voluntary consent; and
• the complaint does not allege that an employee harassed a student.
• Facilitator should not be Decision Maker or Investigator.
• There is no official definition of “informal resolution,” which may involve conflict resolution strategies such as (but not limited to):
• Arbitration
• Mediation
• Restorative justice
• 34 C.F.R. § 106.45(b)(9)
• Notice of Informal Resolution – See Forms 10 and 11

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Investigations

• Investigation Process & Outcomes
• During an investigation and throughout the grievance process.
• Ensure that the burden of proof and of gathering evidence rests on the district, not the parties, except that certain treatment records cannot be obtained without voluntary, written consent from a party or parent.
• Provide equal opportunity for each party to present witnesses and evidence.
• Notice of Formal Complaint – See Form 8
• Do not restrict either party’s ability to discuss the allegations or gather and present evidence;

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Investigations

• Provide parties with the same opportunities to have others present during interviews or other related proceedings, including an advisor who may be, but is not required to be, an attorney.
• Note that this is a distinct change from New York Taylor Law rules that only permit union representation, and not attorney representation, during an investigation, and then, only if the member is a potential subject of discipline.
• Notice Regarding Advisors – See Form 9
• Provide any party invited or expected to attend written notice of the date, time, participants, purpose, and location of any investigative interview, hearing, or other meeting, with enough time to allow the party to prepare to participate.
• Notice of Interview - See Form 12

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Investigations

• Provide both parties and their advisors, if any, an equal opportunity to review all evidence that is related to the allegations in the formal complaint, including:
• Evidence on which the district does not intend to rely; and
• Any exculpatory or inculpatory evidence from any source.
• Such evidence must be provided prior to the completion of the final investigation report, and in time to give the parties at least 10 days to prepare and submit a written response, which the investigator must consider prior to completing the investigation report.
• Notice of Right to Inspect/Review Evidence – See Form 13

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Investigations

• Prepare a written investigation report that fairly summarizes all relevant evidence and provide the report to the parties and their advisors, if any, for their review and written response, at least 10 days before any determination of responsibility.
• Notice of Right to Review and Respond to Investigative Report – See Form 14
• The investigation report may NOT include findings or determinations!
• Hearings may be held, but are not required for K-12 schools
• 34 C.F.R. § 106.45(b)(5)

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Hearings and Pre-Determination Processes

• A Title IX coordinator may determine whether a live hearing is necessary on a case-by-case basis, provided the school’s grievance process clearly indicates the equitable circumstances under which a hearing will or will not be provided.
• With or without a hearing, after the completion of the investigative report, before the final determination is made, each party must be given the opportunity to:
• submit written, relevant questions that the party wants asked of another party or witness;
• provide each party with answers; and
• have an opportunity to ask limited follow-up questions.
• Questions regarding a complainant’s prior sexual behavior or sexual predisposition are permitted as relevant ONLY if such evidence would be offered to establish that:
• Another person committed the alleged specific conduct; or
• That the specific alleged conduct was consensual
• 34 C.F.R. § 106.45(b)(6)

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Determining Responsibility

Determination of Responsibility

• The decision maker cannot be the investigator or the Title IX coordinator.

Many schools are requiring senior administrators to serve as Title IX coordinators, assigning assistant principals to serve as investigators, and designating building principals as decision makers.

• The decision maker must apply the standard of evidence as established by district policy (preponderance of the evidence [more likely than not] or clear and convincing [highly probable]) and issue a written determination of responsibility that:
• Identifies the allegations that potentially constitute sexual harassment;
• Describes the school district’s procedural steps taken from the receipt of the complaint to the determination;
• Includes findings of fact supporting the determination;
• Includes conclusions regarding application of the code of conduct to the facts;

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Determining Responsibility

Determination of Responsibility

• Includes a statement of, and a rationale for, the result as to each allegation, including:

Determination of responsibility;

Disciplinary sanctions to be imposed;

Whether remedies to restore or preserve equal access to the school district’s education program or activity will be provided to the complainant.

• Explains procedures, timelines, and permissible bases for appeals.
• Reminds the parties of the prohibition on retaliation.
• Model Report – See Form 15
• 34 C.F.R. § 106.45(b)(7)

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What are Remedies?

• Remedies are outcomes of the grievance process, and may only be imposed following a formal complaint grievance process. 34 C.F.R. §106.45(b)(1)
• Must be designed to restore or preserve equal access to the school district’s education program or activity.
• Remedies may be the same individualized services such as supportive measures.
• Remedies may also be disciplinary or punitive in nature and may burden a respondent found culpable for allegations, but only upon completion of the grievance process.
• Disciplinary remedies may only be applied in accordance with applicable law (e.g., 3214, 3030-a, Section 75 or union grievance process).

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Employee Assistance Program –Remedies

• Formal administrative referral(s).

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• Suggested referral(s).

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• Could include counseling, coaching, and/or online training.

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Appeals

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• Both parties must be offered the right to appeal a determination of responsibility, or dismissal of a complaint or any allegations therein, for any of the following reasons:
• (1) a procedural irregularity that affected the outcome;
• (2) new evidence that was not reasonably available at the time of the determination and could affect the outcome;
• (3) a conflict of interest on the part of the Title IX coordinator, investigator, or decision maker that affected the outcome.
• The grievance procedure may also offer both parties an equal right to appeal for additional reasons.

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Appeals

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• For all appeals, written notice of the appeal must be provided to both parties, along with an equal opportunity to submit a written statement in support of, or challenging, the determination.
• Notice of Written Determination – See Form 16
• The appeal process must result in a written decision that must be provided to both parties simultaneously.
• Decision-Maker’s Written Determination – See Form 17
• Notice of Written Determination – See Form 16
• 34 C.F.R. § 106.45(b)(8)
• Appeal – See Form 18
• Notice of Appeal – See Form 19
• Appeals Officer Decision – See Form 20

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Prohibition Against Retaliation

An employee who has engaged in a protected activity is protected by law & district policy from retaliation

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• Protected activities include:
• Complaining about or reporting harassment or suspected harassment
• Filing a complaint
• Assisting another employee complaining of harassment
• Participating in or cooperating with an investigation of workplace harassment
• Testifying in connection with a harassment complaint

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Retaliation

• Retaliation by a school district or any person against any person for the purpose of interfering with Title IX rights or because the person has participated or refused to participate in any manner in a proceeding under Title IX regulations is prohibited.
• Complaints of retaliation may be addressed through the Title IX grievance process.
• The identity of a person who complains or reports sexual harassment, including parties and witnesses, must be maintained as confidential by a school district, except as permitted by law or to carry out the purpose of these regulations.
• Charges against an individual for code of conduct violations not involving sex discrimination or sexual harassment, but arising out of the same facts or circumstances as a report or complaint of sex discrimination or sexual harassment, could constitute retaliation, if the purpose of the charges is to interfere with any right or privilege secured by Title IX or its regulations, such as to deter a complainant.
• Charging a person with a code of conduct violation based on the person’s knowingly making a materially false statement in bad faith in an investigation is not retaliation, provided that a determination of responsibility alone is not sufficient to determine that a person made a materially false statement in bad faith.
• This rule does not mean that code of conduct violations arising from the same incident giving rise to a complaint under Title IX may not be grounds for discipline on the basis of other provisions.
• 34 C.F.R. § 106.71

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Understanding Retaliation

What is Retaliation?

• Alteration to terms & conditions of employment because employee engaged in protected activity
• Demotions, harmful scheduling or assignments, etc.

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What Isn’t Retaliation?

• Negative employment actions after a protected activity are not automatically retaliation
• All job requirements, disciplinary rules and contractual rights and obligations still apply after a protected activity

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Records Required to Be Maintained

• Records related to reports of alleged sexual harassment must be kept for a minimum of seven (7) years, including:
• Investigation records
• Disciplinary sanctions
• Remedies
• Appeals
• Records of any action taken, including supportive measures.
• Records should document in each instance that the response:
• was not deliberately indifferent and
• took measures to restore or preserve equal access to the education program or activity.

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Records Required to Be Maintained

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• If supportive measures are not provided in response to a report, the district’s records should document why the response was not clearly unreasonable under the known circumstances.
• The requirement regarding records retention is separate and apart from any rights to inspect or access these records, which remain limited by the Family Educational Records & Privacy Act (FERPA), with the express exception of parties’ access to information during the grievance process.
• See Form 2.

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Training and Training Records

• Training Records
• Any materials used to train Title IX coordinators, investigators, decision makers, and any employee designated to facilitate an informal process must also be retained for seven (7) years.
• Schools must also post the training material on their websites, or otherwise make the materials available to the public.

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34 C.F.R. § 106.45(b)(10)

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New York State Human Rights Law (HRL)��

• Under Executive Law § 290 et seq. and related provisions (e.g. § 296), discrimination and harassment on the basis of sex (including sexual harassment) are prohibited.
• The HRL protects not only employees, but also non-employees, interns, applicants, and independent contractors from sexual harassment.
• Importantly, under New York law, the harassment does not have to be “severe or pervasive” to be illegal (i.e. the threshold is lower than under some older standards).

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New York Labor Law § 201-g (“Prevention of sexual harassment”)

• In 2018, New York added a specific labor law requirement governing employer obligations regardless of employer size (i.e. applies broadly). Key provisions include:
• Employers must adopt a sexual harassment prevention policy (either the state’s model policy or a policy that meets or exceeds its minimum standards).
• That policy must include:
• A prohibition on sexual harassment, with examples of prohibited conduct
• Information about federal and state legal remedies
• A standard complaint form

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New York Labor Law § 201-g (“Prevention of sexual harassment”)

• Procedures for timely and confidential investigation of complaints and due process for all parties
• A statement that sexual harassment is misconduct and that sanctions will apply
• A statement that retaliation for complaints or participation is unlawful
• Employers must provide each employee, in writing (in English and in the employee’s primary language where identified), at hiring and at each annual training, with a notice containing the employer’s sexual harassment prevention policy and information given in training.
• Employers must conduct annual training for all employees (using an interactive program, whether the state’s model or an equivalent) covering topics such as defining sexual harassment, examples, remedies, and employees’ rights.

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New York Labor Law § 201-g (“Prevention of sexual harassment”)

• Under those laws, employers in New York have several ongoing obligations:
• Written policy & posting/notice: their sexual harassment policy must be in writing, included in employee handbooks, and employees must receive it.
• Complaint process: there must be a method (complaint form) for employees to report harassment, and procedures for timely, impartial, and confidential investigation.
• Training: all employees must receive annual training, and new hires should get training within 30 days.
• Retaliation prohibited: employers cannot retaliate against an employee for making a harassment complaint or for participating in an investigation or proceeding.
• Updating policies: New York periodically updates the model policy/training to reflect changes (e.g. to address remote work).

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55

What counts as sexual harassment in New York?

• New York has some of the strongest protections in the country against sexual harassment. The rules apply to both employees and employers
• Unwelcome conduct of a sexual nature (comments, jokes, physical touching, gestures, images, etc.).
• It does not need to be “severe or pervasive” — any harassment that subjects a person to inferior terms, conditions, or privileges of employment is unlawful.
• Includes harassment from supervisors, co-workers, customers, contractors, or even others in the workplace.

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School District Policy Regarding Sexual Harassment

• All employers, including school districts, required to implement policies and procedures that comply with NY law, including interactive training for all employees
• Title IX regulations as amended also require mandated training and public access to training materials

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Required District Policies Regarding Sexual Harassment

• Boards of Education must adopt updated policies and procedures that comply with federal and state law.
• New and updated policies and procedures (individual District policy numbers may be different):
• Policy 0110: Workplace Sexual Harassment
• Regulation 0110-R : Workplace Sexual Harassment Regulation
• Policy 0110 – E.1: Sexual Harassment Complaint Form
• Policy 0111: Sexual Harassment Policy for Students

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Supervisors’ Reporting Responsibilities

• NYS Mandates That Supervisors Report ANY Known or Observed Harassment, even if
• No one is objecting to the harassment
• The supervisor thinks is conduct is trivial
• The targeted individual asks that it not be reported
• Supervisors who fail to report suspected sexual harassment, knowingly allow it to continue, or engage in retaliation will be subject to discipline

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The Complaint and Investigation Process

• Title VII/IX Officer must conduct intake interview and explain options:
• Informal Complaint: verbal or written
• Formal Complaint: verbal or written
• Mediation (if appropriate)
• Placing District on notice without seeking resolution through the complaint process or mediation

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The Formal Complaint Process

Formal complaints must be given a full and fair investigation

• Initial Investigation
• Must commence with two days of receipt
• Investigation file must be submitted within 7 days
• Findings may be appealed to Superintendent within 30 days

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• District level investigations or appeals
• Must commence within three days of receipt
• Within 30 days, Superintendent must provide written findings or a written status report

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Additional Protections & Remedies

• New York State Division of Human Rights (DHR)
• “Election of Remedies” for Human Rights Law violations
• Complaints may be filed with DHR within one year of alleged discrimination; OR
• A lawsuit can be filed in NYS Supreme Court within 3 years
• www.dhr.ny.gov

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• U.S. Equal Employment Opportunity Commission (EEOC)
• Complaints must be filed within 300 days of alleged discrimination
• Cannot sue in federal court without first filing EEOC complaint
• www.eeoc.gov

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Conflicts Between Federal and State Law

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New York State Laws that Protect the Rights of Transgender Students �

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• New York State Education Law §3201-a prohibits discrimination based on sex with respect to admission into or inclusion in courses of instruction and athletic teams in public schools. Discrimination based on sex includes discrimination based on gender identity and expression with respect to admission into or inclusion in courses of instruction and athletic teams in public schools.
• The Dignity for All Students Act (DASA) Education Law Article 2; Sections 10-13; 8 NYCRR §§ 100.2[jj] and [kk]) provides that “no student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.

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New York State Laws that Protect the Rights of Transgender Students (cont)�

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• The Gender Recognition Act (GRA) is a comprehensive bill that updates and clarifies many issues related to name changes and correcting sex designations/gender markers on identity documents for transgender and nonbinary New Yorkers.
• In 2019, the Human Rights Law was amended through the Gender Expression Non-Discrimination Act (GENDA) to explicitly add gender identity or expression as a protected category.
• N.Y. Exec. L §§ 296, 296-a & 296-b.
• GENDA defines “gender identity or expression” as “a person's actual or perceived gender related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”
• N.Y. Exec. L. § 292(35).

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NYS Human Rights Law

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• New York State HRL expressly prohibits discrimination by educational institutions based upon students, employees or applicants’ actual or perceived sex and gender identity, which includes gender-related identity, appearance, behavior, expression, or other gender-related characteristics, regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.

NYS Human Rights Law

• Examples of discriminatory conduct under the HRL can include:
• Denying equal access to school activities;
• Denying the use of restroom or other facilities consistent with a person’s gender identity;
• Requiring a transgender person to use a single-occupancy facilities; and
• Requiring individuals to show medical documents to use facilities consistent with gender identity.

NYS Human Rights Law

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• Discriminatory conduct under the HRL may include:
• Refusing to use an individual’s requested name or pronoun;
• Denying access to an educational program or school-sponsored club based upon gender identity;
• Subjecting a student to bullying at school.

https://dhr.ny.gov/system/files/documents/2022/04/nysdhr-genda-guidance-2020.pdf

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Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government

Executive Order 14168 issued on January 20, 2025:

• Rescinds and replaces Executive Order 14021, which had previously guaranteed an educational environment free from discrimination based on sex, sexual orientation, and gender identity. 
• EO 14168 directs federal agencies to define sex as “an immutable biological classification” and limits protections for transgender and gender non-conforming individuals in educational settings. 
• Specifically, the order restricts schools from respecting students' gender identities, potentially impacting restroom access, sports participation, and parental notification policies. 
• The order defines sex as a person's "immutable biological classification, as determined by the sex organs, chromosomes, and internal and external reproductive anatomy"
• Restrictions on Curriculum: The order may limit or prohibit the teaching of gender identity concepts in schools. 

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Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government

Executive Order 14168 issued on January 20, 2025:

• Impact on Education:

Restricting Gender Identity Recognition: The order may prevent schools from respecting a student's chosen name or pronouns, or allowing them to use facilities aligning with their gender identity. 

Parental Notification: It could require schools to inform parents if a student identifies as transgender, regardless of the student's wishes.  (See Parent Preclusion policy challenge in John and Jane Parents1 v. Montgomery County BOE 8:20 –cv-03552-US S.Ct. Certiorari petition pending No. 23-601)

Restrictions on Curriculum: The order may limit or prohibit the teaching of gender identity concepts in schools. 

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Federal vs New York State Law

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Federal vs. New York State Law

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Federal vs. New York State Law

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Obligation to Provide Equal Athletic Opportunities to All Students, Regardless of Sex

• Public elementary and secondary schools, as well as colleges and universities that receive Federal funding (collectively “schools”), have a responsibility under Title IX to provide equal athletic opportunities to all students, regardless of sex. Title IX requires schools to effectively accommodate the athletic interests and abilities of their students, regardless of sex, and provide equal opportunity in the benefits, opportunities, and treatment provided for their athletic teams.
• It is most important for a school’s Title IX coordinator and athletic director to have a solid grasp of the two major areas of the Title IX compliance framework relative to a school’s athletic program: 1) Accommodations of Interests and Abilities, and 2) Other Athletic Benefits and Opportunities.
• The first area uses the “three-prong test” to determine whether a school provides adequate athletic opportunities for its female students.  An institution can demonstrate compliance by showing any one of three alternative criteria: 1) substantial proportionality, 2) a history and continuing practice of expanding sports participation opportunities for girls, or 3) full and effective accommodation of the athletics interests of the girls enrolled at the school.

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Obligation to Provide Equal Athletic Opportunities to All Students, Regardless of Sex

• The second area evaluates a “laundry list” of athletic benefits with regard to: 
• athletic equipment and supplies
• locker rooms and practice/competition facilities
• allocation of travel/transportation/per diem benefits
• years of experience, quality and salaries of coaches
• institutional housing/dining facilities and services
• game/practice times
• scheduling
• facilities for and access to training and medical services
• academic tutoring services for student-athletes
• institutional support services
• recruiting resources provided to student-athletes

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Obligation to Provide Equal Athletic Opportunities to All Students, Regardless of Sex

• It is out of this 11-program area where the majority of Title IX complaints appear to arise.

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• There is no requirement under Title IX that men’s and women’s teams in the same sports or like sports have facilities of the same quality. The analysis for the Title IX program component of the “provision of locker rooms, practice and competitive facilities” is an overall approach that compares all of the facilities for women’s teams to all of the facilities for men’s teams.

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• Schools can emphasize different teams for men and women. If the softball field is lesser quality than the baseball field, a school can still comply if, for example, the women’s soccer field is better quality than the men’s soccer field.

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• However, the reality for many programs is that the women’s and men’s teams in the same sports often use the same facilities. Men’s and women’s teams in such sports as basketball, cross country, golf, soccer, swimming, tennis, and track may all use the same facilities. If volleyball is offered only to women, that team often uses the same facilities as the basketball teams. If an institution offers football, the soccer teams may use the same fields as the football team, or the football facilities may be comparable quality to the soccer facilities and/or facilities for most other teams. In other words, in many programs, nearly all men’s and women’s teams use the same facilities, which is equitable. Often, the only unshared facilities remaining for comparison are the baseball and softball fields.

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Facility Issues – Baseball vs. Softball

• Facilities are a common compliance problem under Title IX, and often it is the quality of the softball field that is the main concern. Problems with softball fields have generated lawsuits by parents at both the high school and collegiate levels. Furthermore, the Office for Civil Rights has shown its willingness to conduct “modified reviews” at secondary schools, in which they visit a campus to review just the baseball and softball fields.

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• Does the source of funding matter?

• The source of funding that created a better quality baseball than softball field is irrelevant under Title IX – booster club monies, other donations, or fundraised dollars do not relieve the institution of its obligation to make facilities equivalent.

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Facility Issues – Baseball vs. Softball

• The many features to be reviewed at baseball and softball fields include: field surface quality, dugouts, scoreboards, fencing, batting cages, bullpen areas, lights, equipment storage, press boxes, spectator seating, concessions, restrooms, locker rooms, and umpire locker rooms.
• Also reviewed are off-campus versus on-campus facilities, and permanent versus portable features.
• There is no requirement that identical features be at the softball and baseball facilities, but the same overall analysis applies. If one facility has several features, while the other has very few, a compliance problem is likely.
• Minutiae do not create compliance concerns, such as the number of hooks for jackets in the dugouts, whether there are billboards advertising the local car dealership at one facility but not the other, or whether the foul poles are 30 feet high at one field and 25 feet high at the other field. With the numerous features that may be provided at baseball and softball fields, a difference for one feature may be negligible or result in a very minor compliance concern. Differences for several features all affecting the same facility simply add up to a lesser quality facility, a definite compliance problem.

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Facility Issues – Baseball vs. Softball – Field Surface Quality

• There is generally no acceptable reason under Title IX for differences in quality when making the simple comparison between baseball and softball field surfaces. If the baseball coaches and/or parents spend time sprucing up the baseball field, while the softball coaches and parents do not groom the softball field, it may be because the baseball field is protected by perimeter fencing that keeps others from damaging their efforts. Softball tends to be a more popular recreational sport than baseball.
• If others are allowed to use the softball field, the softball coaches / parents / athletes have much less incentive to fix the field surface. Instead, the maintenance by school staff will require much greater vigilance to maintain comparable surface quality between the baseball and softball fields.
• If other school groups or outside groups are given priority at any time for using the softball field (while the baseball team has exclusive use of its field), then the institution likely has two Title IX compliance problems – quality of the softball field due to overuse, and the scheduling for the softball team’s games and practices.

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Facility Issues – Baseball vs. Softball – Dugouts

• A bench separated from the field by a chain link fence with no walls and no roof (as seems to be provided more often at softball fields) is not comparable to a bench with walls on three sides and a roof (as seems to be provided more often at baseball fields). It does not matter whether the floor of the dugout is at ground level or below ground level. If the dugout floor is at ground level, the usual result is that spectator seating behind the dugout is more limited or must be raised so spectators may see the field.
• The square footage of the dugouts need not be identical to comply with Title IX, particularly if the number of athletes on the teams varies significantly. In general, however, this approach can differ between college and high school programs. For example, at the college level, if over the years the baseball team averages 35 participants while the softball team averages 18, it is acceptable for the dugouts at the baseball field to be larger than those at the softball field.
• The size of the dugouts should be “equivalently adequate.” Thus, if the dugouts at the baseball and softball fields are both built to accommodate 20 athletes, it might be adequate for softball but not for baseball. However, administrators should not build in limitations; if the softball dugouts are constructed so that they just barely accommodate 18 athletes, the dugout is less adequate if a new head coach prefers to have 25 athletes on the softball team.
• At the high school level, it may be school policy or standard operating procedure to set a limit on the number of participants per team, such as 15, for both baseball and softball and most other sports. Under those circumstances, there is no justification for having softball dugouts smaller than those at the baseball field.
• Dugouts should also be constructed of similar quality materials. Tarps over chain link are not equivalent to cinderblock. Providing a single bench that seats 8 is not equivalent to double-tier seating that accommodates 35. Providing only hooks and nothing else in the dugout is not equivalent to providing hooks, helmet racks, and bat racks. If there is a lavatory adjoining the baseball team’s dugout, then there should be one adjoining the softball team’s dugout.

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Facility Issues – Baseball vs. Softball – Scoreboards and Fencing

• Scoreboards should be comparable. This does not mean that they need to be identical size or that it violates federal civil rights law if the scoreboard at one facility flashes hits or errors, while the other does not. However, if there is a “jumbotron” at the baseball field complete with instant replay, while spectators need to be armed with their binoculars to find the scoreboard at the softball field, then it is time to identify the local business willing to donate the new scoreboard at the softball field, complete with the company’s name on it if necessary, or find the dollars somewhere in the institution’s funds.
• Fencing. This can include outfield fencing and fencing surrounding the facility that limits access to persons who may damage the facility. The fencing provided should be comparable, which includes safety features such as protective tops on chain link outfield fencing.

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Facility Issues – Baseball vs. Softball – Bullpens, Batting Cages

• Ideally, pitchers would like to warm-up without distraction, whether they are starting the game or coming in for relief. Whatever space or privacy is provided for bullpen areas should be equivalent at softball and baseball fields.
• Batting cages should be equivalent, whether at the field or tucked in to the corner of a building located conveniently near other facilities used by the team. If the baseball team routinely has 35 athletes, while the softball team averages 18 athletes, it can be okay for an extra batting cage to be available for baseball. If the baseball and softball fields are near each other and both teams share the batting cages between the fields, that can work well. What does not work well is providing batting cages at the baseball field only and expecting the softball athletes to ask permission of the baseball coaches and/or athletes to use the cages. Use of the cages should not be less convenient for one team than the other. One consideration is that quality can offset convenience, and convenience can offset quality. For example, a batting cage is conveniently located next to the baseball field, but enclosed only by netting, so it is unusable during inclement weather. The batting cage available to the softball team is in a gym that is not near the softball field, but the softball team has exclusive use of the batting cage and access at all hours of the day and days of the week. The convenience of the batting cage for baseball is offset by the quality of the batting cage for softball.
• Under Title IX, offsetting benefits means that students of one sex are provided an advantage in some aspect of the program, while students of the other sex are provided an advantage in a different aspect of the program. If the benefits are of equivalent weight or importance, then they may “offset” each other or provide a balance of benefits. The result is compliance with Title IX.

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Facility Issues – Baseball vs. Softball – Lights and Press Boxes

• Lights. If the baseball field has lights, then so should the softball field and vice versa. There are other ways to comply with Title IX if one facility has lights but the other does not. However, the team using the facility without lights is at a disadvantage, which should be offset elsewhere in the program. Since providing offsetting benefits usually requires a continuous and conscious effort to achieve and maintain compliance, providing lights at both facilities may be easier in the long run, particularly if the difference of lights is the basis for someone’s filing a lawsuit or complaint that prompts a review of the entire athletics program.

• Press Boxes. The usual compliance problem for press boxes is that they are provided at one facility but not the other. Obviously, if the baseball or softball game is taking place in a light drizzle, keeping score and announcing the game over the electronic public address system are more challenging when there is no press box. If the baseball field has a press box and the softball field does not, then rent a trailer if necessary until the local high school shop class, the architecture or engineering class at the university, or some other group can make constructing a press box their class project or team bonding experience. Press boxes should be equivalently adequate and of equivalent quality at the respective fields, which includes consideration of facility features allowing for webcasts.

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Facility Issues – Baseball vs. Softball – Equipment Storage and Spectator Seating

• Equipment Storage. If equipment storage is provided at one field, then it should be provided at the other field. Equipment storage should be “equivalently adequate” and equivalently convenient. If one field has storage but the other does not, this can be mitigated by providing student managers to haul equipment back and forth from the field to storage facilities elsewhere until such time as storage is provided at both fields.

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• Spectator Seating. If an institution has offered baseball for decades and as many as 1,000 spectators come to the baseball games, while softball is still developing a fan base and 150 to 200 spectators attend the softball games, then providing seating capacity for 1,500 spectators at the baseball field and 500 at the softball field is fine. Seating capacity at facilities should be “equivalently adequate” under Title IX, based on expected attendance. It is a good plan for institutions to construct facilities at locations that permit expansion to meet increasing attendance in the future. As with other features, there are different levels of quality for spectator seating, ranging from bleachers of warped wood and splinters, or creaking rusting metal, to seats with seatbacks and armrests. The quality of spectator seating should be comparable. If there is seatback seating at one field, then there should be seatback seating at both fields.

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Facility Issues – Baseball vs. Softball – Locker Rooms

• Locker Rooms. If the locker room for the baseball team is at the baseball field, while the softball team’s locker room is 150 yards (or farther) from the softball field, this minor difference may be offset by the location and/or quality of locker rooms for other teams. This means that even if the analysis for practice and competitive facilities comes down to comparing the baseball and softball fields, the locker rooms provided to teams may be very different quality and in a variety of locations, convenient or inconvenient. For example, even though the men’s and women’s soccer teams use the same practice and competitive fields, the women’s soccer locker room may be conveniently located to the soccer field, while the men’s soccer locker room is not. This could balance out the convenience for the baseball team having its locker room at the field while the softball team does not.

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• Umpire Locker Rooms. The institution that provides a locker room for baseball athletes and a locker room for the umpires at the baseball field but does not provide a locker room for the softball athletes at the softball field should rethink priorities. Hopefully, the students attending the institution and competing as representatives of the institution would be given more deference than the visiting game officials. If the umpires’ locker room is in a building adjacent to the field, there is less to explain. If locker room facilities are provided for umpires, they should be equivalently convenient in relation to both facilities.

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Facility Issues – Baseball vs. Softball – Concessions, Restrooms and Portable vs. Permanent

• Concessions, Restrooms. The convenience and quality of concessions and restrooms are incentives for spectator attendance at any contest. When making the simple comparison between baseball and softball facilities, concessions and restrooms should be the same in regard to convenience and quality.

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• Portable Versus Permanent Facilities. Some “ permanent” restrooms and concession facilities are on the verge of crumbling. Some portable facilities – for example, large trailers – are spotless and serve as concession stands complete with stoves, ovens, sinks, etc., and restroom facilities with all plumbing in full operation. In other words, portable facilities may be comparable to and even better than permanent facilities. The question to answer is not whether the baseball field or the softball field has more permanent or portable features; the question to answer is whether the facility features are the same quality.

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86

Scenarios: Student-on-Student Harassment - Cross-District Sports

• Allegation of harassment by peer from another school district.

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• Does the district have Title IX jurisdiction?

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• What immediate supportive measures are required?

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• Interaction with New York's DASA obligations.

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Notes: Student-on-Student Harassment - Cross-District Sports

• Does Title IX apply if the conduct creates a hostile environment in the district’s program or activity and the respondent attends another district?

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• Is the answer different under State law?

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• Code of Conduct?

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• Immediate supportive measures may include schedule adjustments, counseling, or safety planning.

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• DASA also applies because the harassment creates a hostile environment under NY law.

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Scenarios: Teacher Misconduct on a Field Trip

• Teacher accused of inappropriate comments during overnight trip.

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• What steps must the Coordinator take immediately?

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• When must law enforcement be notified?

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• Disciplinary options?

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• How to handle supportive measures when the teacher is the student's instructor.

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Notes: Teacher Misconduct on a Field Trip

• Coordinator must promptly respond and initiate the Title IX grievance process.

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• Consider whether a report to law enforcement or Child Abuse in Educational Setting report is mandated.

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• Options for the teacher pending the Title IX investigation?

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• Supportive measures may include changing class assignments or providing an alternate teacher

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• Ensure staff understand their duty to report misconduct.

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Scenarios: Gender Identity and Bathroom Access

• Transgender student denied access to restroom aligning with gender identity.

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• Interaction of Title IX regulations with NYSED transgender guidance.

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• Steps to ensure non-discrimination and student safety.

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• Parent notification considerations under FERPA and NY law.

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Notes: Gender Identity and Bathroom Access

• Does Title IX prohibit discrimination based on gender identity?

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• NYSED guidance requires allowing students to access facilities consistent with gender identity.

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• Consider privacy and FERPA issues when communicating with parents.

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• Failure to provide access may constitute sex discrimination.

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Scenarios: Social Media Harassment

• Student targeted through explicit memes on Snapchat outside school hours.

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• Does Title IX apply to off-campus conduct?

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• Factors for determining hostile environment at school.

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• Balancing First Amendment rights with student safety.

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Notes: Social Media Harassment

• Does Title IX apply to off-campus conduct if it creates a hostile environment in school.

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• Any different outcome under State law?

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• Factors: severity, pervasiveness, and impact on access to education.

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• Balance with First Amendment rights, but harassment is not protected speech.

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• Coordinate with DASA obligations for cyberbullying.

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Scenarios: Retaliation Claim

• Student’s playing time cut after filing a Title IX complaint.

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• How Title IX defines retaliation.

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• What evidence should be documented?

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• How the Coordinator should address concerns with the athletic department.

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Notes: Retaliation Claim

• Title IX strictly prohibits retaliation against any participant in the process.

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• Cutting playing time or exclusion from team leadership can constitute retaliation.

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• Coordinator must document evidence and intervene promptly.

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• Athletic staff should be trained on retaliation risks.

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Scenarios: Special Education Student with Support Needs

• Student with IEP reports harassment but has language-processing challenges.

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• Adapting Title IX process for accessibility.

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• Intersection with IDEA and Section 504 requirements.

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• Documentation requirements.

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Notes: Special Education Student with Support Needs

• IDEA/Section 504 require accessible grievance processes.

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• Coordinator may need to provide interpreter services, simplified questions, or allow advocate participation.

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• Document adaptations made for accessibility.

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• Failure to accommodate may be both a Title IX and disability violation.

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• Coordination with CSE

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Scenarios: Staff Complaint Against Administrator

• School nurse alleges principal made gender-based derogatory remarks.

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• Coordinator’s responsibility when respondent is an administrator.

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• Handling conflicts of interest.

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• Reporting obligations under NY Education Law §3020-a and CBAs.

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Notes: Staff Complaint Against Administrator

• The Coordinator must proceed even when the respondent is an administrator.

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• Conflict of interest: consider an external investigator or an alternate Coordinator.

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• NY Education Law §3020-a?

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• Ensure complainant is protected from retaliation.

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DISCUSSION

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