Title IX Training

“No person in the United States on the basis of sex shall 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.”

Title IX states:

Legal History and Background on Title IX as it Relates to Sexual Harassment

Cannon v. University of Chicago

441 U.S. 677

(1979)

Supreme Court says title IX includes an implied right of action, meaning people can sue under it.

Franklin v. Gwinnett County Public Schools

503 U.S. 60

(1992)

• Sexual harassment constitutes sex discrimination under Title IX
• Title IX not only provides equitable remedies to require fair treatment, it also provides for damages awards (i.e., District can be sued for money)

Gebser v. Lago Vista Independent School Dist.

524 U.S. 274

(1998)

A school is not liable for monetary damages for teacher-student sexual harassment unless a school district official who “at a minimum has authority to institute corrective measures on the

district’s behalf” has actual notice of, and is deliberately indifferent

to, the teacher’s misconduct.

Davis v. Monroe County Board of Education 536 U.S. 629

(1999)

A school board may be held liable in cases of student-on-student harassment, but only where the district is deliberately indifferent to sexual harassment, of which the district has actual knowledge, and that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

Department of Education The Office for Civil Rights

OCR Guidance

• From 2001-2017, OCR issued several guidance documents regarding sexual harassment and Title IX, heavily focused on the rights of the victim and the obligation of schools to take prompt and effective steps reasonably calculated to end any harassment and prevent harassment from occurring again.
• Schools were required to engage in prompt, thorough, and impartial investigation while providing interim supportive measure to the victim, informing the victim of the progress of the investigation, and informing the victim of the outcome of the investigation.
• Victim was the focus.

Changes to the Regulations

• Responding to complaints that the Department of Education’s guidance did not adequately protect the rights of those accused of sexual harassment or sexual violence, in 2017, the U.S. Department of Education Secretary Betsy Devos rescinded the Obama-era guidelines which encouraged colleges and universities to more aggressively investigate campus sexual assaults.
• In October 2018, DOE proposed new regulations for the first time

since 1997.

• The regulations were open to public comment, and the DOE received over 124,000 responses.
• The regulations were published May 6, 2020, and made effective

August 14, 2020.

• DOE published draft rule in November 2018 and opened for public comment
• DOE received over 124,000 comments
• Final rule, including commentary is 2,033 pages
• Effective date: August 14, 2020

Overview of the new regulations

• Definition of sexual harassment has changed—it is reserved for only very serious sexual conduct
• Respondents will get written notice before first

investigative interview

• Parties will be able to have a parent and/or attorney

at interview (an “advisor”)

• Gag orders prohibited
• The person who investigates the allegation and the person who makes the final decision must be different people
• Both parties have extensive opportunity to respond

to evidence presented against them

• Appeal must be offered

New Definition of Sexual Harassment

Quid Pro Quo

• When an employee conditions some benefit in exchange for unwelcome sexual conduct

Hostile Environment

• Conduct that is so severe, pervasive, AND objectively offensive that
• It denies equal access to educational program

Violence Against Woman Act Big 4

• Sexual assault
• Dating violence
• Domestic violence
• Stalking

Quid Pro Quo

• Principal promises bad evaluation if teacher doesn’t give him massage
• Teacher offers student higher grade if student kisses her
• Coach implies athlete will start if she lets him sit close and rub her legs
• *MUST BE BY AN EMPLOYEE*

MUST MEET ALL FOUR ELEMENTS

Hostile Environment

• Severe = reasonable person considers it severe
• Most physical contact will be considered severe
• Non-physical contact associated by threats of violence
• Pervasive = pattern or widespread dissemination
• Objectively Offensive = reasonable person is offended
• “I know it when I see it”
• Denies Access = undermines or detracts from educational experience
• Could include dropping out of activities, grades dropping, skipping certain classes (or all classes), staying in for lunch, opting for online school

Violence Against Women Act Big 4

• Sexual Assault
• Dating Violence

• Domestic Violence
• Stalking

Sexual Assault Defined

“any sexual act directed against another person, without the consent of the that person including instances where the person is incapable of giving consent, such as forcible rape, forcible sodomy, sexual assault with an object, forcible fondling*.”

• *NOTE: Fondling requires that the touching be for the purposes of sexual gratification.

Sexual Assault in Schools

• Butt slaps (grab ass Friday)?
• Playing doctor?
• Crowded hallway?
• Squirrel tapping (grabbing or touching male genitalia over the pants in a joking manner)?

Sexual Intent?

Factors In Determining Intent:

• Age and maturity of students?
• Disability?
• Experience or understanding?
• Control or coercion?
• Attitude of both students?
• Concealment?
• Where did it happen?
• How long did it last?

“violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the

Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship”

Dating Violence

*For the purposes of this definition dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Importantly, sexual harassment under the dating violence prong does not have to be sexual in nature.

person that would cause a reasonable person to fear

for the person’s safety or the safety of others; or suffer substantial emotional distress”

Stalking

“engaging in a course of conduct directed at a specific

Must be two or more acts (on district property or during school sponsored activities), including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.

THEN

Changes to Policy and Procedure

• Sexual harassment was often included in a general Non- Discrimination Policy
• Schools were expected to investigate immediately and take prompt disciplinary action
• Respondents were often suspended during the course of the investigation
• All sexual conduct, however minor, was treated as sexual harassment
• LEAs were expected to handle off-campus allegations if there was any nexus to the school

NOW

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• It is best to have a separate Sexual Harassment Policy
• Cannot begin investigative

interviews right away

• Respondents cannot be suspended unless under an “emergency removal” process
• Only Sexual Harassment must be addressed under Title IX— BUT that doesn’t mean you can ignore everything else.
• Unless the alleged harassment occurred AT school or a school- sponsored event (and in the US), the LEA does not have jurisdiction to investigate.

The Players

• Title IX Coordinator – Dave Gomez

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• Investigator(s) – School Administrators

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• Decision Maker(s) – Title IX Committee

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• Informal Resolution Facilitator – Dave Gomez

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• Appellate person – Safe School Appeals Committee

Report of Harassment

• Previously, a school was not deemed to have “actual knowledge” of sexual harassment unless someone with authority knew.

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• Now, the new regulations impute actual knowledge to an LEA when ANY EMPLOYEE knows.

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• ANY employee who becomes aware of conduct that COULD amount to Sexual Harassment—either through observation or a personal report—is REQUIRED to report to a Title IX Administrator.

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• Title IX Administrator initiates the Title IX Grievance Procedures.

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• We need to discuss SEXUAL HARASSMENT vs. SEXUAL MISCONDUCT.

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Grievance Procedures

• Complainants and Respondents are to be treated equitably by providing remedies to a Complainant where a determination of responsibility for Sexual Harassment has been made against the Respondent, and by following these grievance procedures before imposing any disciplinary sanction or other actions are taken against the Respondent.
• These grievance procedures require an objective evaluation of all relevant evidence, both inculpatory and exculpatory evidence. Credibility determinations may not be based on a person’s status as a Complainant, Respondent, or Witness.
• All individuals designated as Title IX Coordinator, Investigator, Decision-Maker(s), or any person designated to facilitate an Informal Resolution Process shall not have a conflict of interest or bias, and shall receive training
• A Respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
• The District will ensure reasonably prompt timeframes for conclusion of the grievance process, including for filing and resolving appeals and informal resolution processes, HOWEVER, the process may be delayed for good cause, including, among other things, involvement of law enforcement
• The standard of evidence for all complaints of sexual harassment through this process is preponderance of the evidence.
• Both the Complainant and Respondent shall have the right to appeal the Decision-

Makers’ decision.

• Supportive Measures will be made available to the Complainant and Respondent throughout the grievance process.

Grievance Procedures

Initial Inquiry

***Key is communication with Title IX Coordinator***

Supportive Measures

• counseling
• extensions of deadlines or other course-related adjustments
• modifications of work or class schedules
• altering work arrangements for employees or student-employees
• school safety plan
• mutual restrictions on contact between the parties
• changes in work locations
• leaves of absence
• increased security and monitoring of certain areas of the school
• other similar measures

Respondent should also be offered Supportive Measures once the investigation begins.

Supportive measures may include:

Emergency Removal

Determine whether emergency removal is warranted:

1. Appropriate when it is determined, based on an individualized safety and risk analysis, that an immediate threat to the physical health or safety of any student justifies removal.
2. The basis for removal must be documented.
3. Respondent must have an opportunity to appeal an emergency removal.

*Supreme Court recently denied a student’s application for a stay of an emergency removal from a high school during a Title IX investigation. The case was one of “first impression” challenging a public high school’s emergency removal of a student in reliance on the new Title IX regulations.

Title XI Coordinator sends formal notice of allegations�and investigation to both parties which includes:

Notice of Allegations

1. complainant’s specific allegations
2. presumption of “no responsibility” for Respondent
3. information regarding the process
4. standard of evidence that will be applied
5. directives not to retaliate
6. information about and offer of the informal resolution process

Formal Complaint

Investigation

***Key is in the handoff to the Title IX Committee***

Reasonable amount of time prior to interviews and send notice of interviews, including:

Interviews

1. date, time, and location of the meetings
2. purpose of the meeting
3. statement that participants expected at the meeting
4. provision that that party may bring an advisor (may be an attorney) to the meeting
5. provision that the party may bring documents, evidence, or other information the party would like the investigator to consider

Prior to conclusion of the investigation, the parties are entitled to see all the evidence, in hard copy or electronic format. Parties are given 10 days to respond to the evidence. This could be in the form of a draft investigative report or just the raw evidence.

Ten-Day Review of Evidence

Investigator/s puts together a final report (Report of Investigation). The final version may include findings of fact by the investigator. This allows investigator to identify inconsistencies and evidence that may be used to support conclusions. ��INVESTIGATORS DO NOT DRAW CONCLUSIONS ��Report is distributed to both parties simultaneously and provided to decision-makers.��INVESTIGATORS JOB IS COMPLETE!

Investigative Report

Upon receipt of the investigative report, each party is offered an opportunity to draft “cross examination questions.” Those questions are submitted to the other party/s.

Ten-Day Cross Examination Questions

1. Decision-makers will screen questions before forwarding them to the party or witness.
2. No set time limit in the regulations to submit questions and review responses but before a final decision is made, parties must have at least 10 days for this part.

Decision-maker(s) will then issue a written determination, which must include:

Final Determination

1. Identification of the allegations
2. A description of the procedural steps taken from receipt of formal complaint through investigation (including any notifications to the parties, interviews with parties and witnesses, site visits, and methods used to gather evidence)
3. Findings of fact supporting the determination
4. Conclusions regarding the application of the Sexual Harassment

Policy or any other policy that might apply

5. Statement of rationale for the result as to each allegation
6. Any recommended disciplinary sanctions
7. Amy remedies to restore or preserve equal access to the LEA’s

program

8. Procedures for appeal

Final Determination

Offer an appeal to both parties for the following:

• Procedural irregularity that affected the outcome of the

matter

• New evidence that was not reasonably available at the time the decision was made
• The Title IX Coordinator, the investigator(s), or decision- maker(s) had a conflict of interest or bias for or against either party

Appeal

End of Process

PRACTICE CASES

Let’s see how we do!

Practice Case 1

• A high school student attends a party at a friend’s house over

the weekend.

• At the party, the student is sexually assaulted by another person who attended the party.
• The student reports the sexual assault to the local police department and to her voice coach, who is a part time paraprofessional at the elementary in the area.
• Because she knew the police were involved, the paraprofessional does not report to her principal.

Case 1 Analysis

• Is the LEA responsible for knowing about the alleged assault?
• Does the LEA have Title IX jurisdiction over the sexual assault?
• Some other policy?
• What are the next steps?

Practice Case 2

• A Sophomore girl reports to coach that several girls on the volleyball team have been picking on her in the locker room in the commons after practice, and on bus rides to away games including:

• snapping her bra,
• calling her sexually charged names

like “whore" and "slut,” and

• posting unflattering pictures of her bending over on social media.

Case 2 Analysis

• Does the LEA have Title IX jurisdiction over the sexual assault?
• Some other policy?
• What are the next steps?

Practice Case 3

• A drill coach has been rumored to be holding pool parties

parties at her house for some members of the drill team over

the summer.

• A student tells the coach she can’t come over anymore because she feels uncomfortable “with the way she looks at her.”
• The student reports to an administrator that the drill instructor told her that if she mentioned the pool parties to anyone, she would not get a spot on the upcoming team.

Case 3 Analysis

• Is Title IX at issue in this matter?
• Some other policy?
• What if the third bullet point is eliminated?

Practice Case 4

• 9^th grade girl broke up with her boyfriend in October.
• The ex-boyfriend, also a 9^th grader, has been exchanging

sexually explicit photos of the girl with his friends for months.

• On at least two occasions, the boy follows the girl between classes and has been reported by another witness touching or attempting to touch the girl’s breasts from behind as she hurried away.
• Boy has also left threatening voicemails on girl’s phone about what he’ll do to her if they don’t get back together.
• The girl’s attendance and grades have been falling for some

months now.

• The girl’s dad is on the phone and is irate having just learned of the boy’s alleged involvement.

Case 4 Analysis

• You take the call with the Dad, what do you say?
• What are the next steps?

Practice Case 5

• You get a call from a mom who says her daughter has been sexually harassed in English class. That’s all she knows.
• When you call the daughter down to ask her what’s going on, she denies anything is happening.
• She seems quieter than usual and it seems to you that she is hiding something, but she insists “everything’s cool” and wants to go back to class.

Case 5 Analysis

• Does the LEA have Title IX jurisdiction over this matter?
• What are the next steps?

QUESTIONS?

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