San Leandro Unified School District� Title IX Investigation Training August 8, 2022�

Presented By:

Katie Riggs and Cindy Allen

Today’s Agenda

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• Brief Overview of the Title IX Regulations
• How to Conduct an Effective Investigation

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Overview of Title IX Regulations��

What is Title IX?

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

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(20 U.S.C. Section 1681 and 34 C.F.R. Part 106)

Definition of Sexual Harassment

• Defined as conduct on the basis of sex that satisfies one or more of the following:

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• Quid Pro Quo - Employee conditioning the provision of an aid, benefits or service of the recipient on participation in unwelcome sexual conduct;
• Hostile Environment - Unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies equal access to an educational program or activity; or
• Specific Offenses - Sexual assault, dating violence, domestic violence or sex-based stalking.

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• “Consent” is not defined.

Examples of Sexual Harassment

• Unwelcome leering or propositions

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• Unwelcome sexual slurs or epithets

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• Sexual jokes, posters, gestures, cartoons

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• Spreading sexual rumors

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• Massaging, grabbing, sexual touching

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• Sexual assault or coercion

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NOTE: Sexual harassment can also include unwelcome conduct that isn’t itself sexual, but that is imposed on the basis of sex (e.g., if a group of middle school girls are taunted because they are girls, it doesn’t matter if they are called sexual names or just told that girls are gross.)

Notice of Sexual Harassment

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• The District has “actual notice” of sexual harassment if any employee hears or is told about the harassment or witnesses it.

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• Any person may report sex discrimination or sexual harassment to one of these people orally or in writing.

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• If you observe or are told about any incident of sexual harassment, you should inform the Title IX Coordinator.

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When Does Title IX apply?

Title IX does not address all sexual harassment allegations:

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• Conduct must occur on campus or in a setting that the District controls
• Remember, if you are dealing with the “unwelcome conduct” prong, then the conduct must be severe AND pervasive AND objectively offensive – one-time incidents may not rise to this level

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TABLE Groups: Does Title IX Apply or Not Apply?

Refer back to criteria on the previous slide to determine if Title IX is applicable:

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Hypothetical #1 Scenario

Hypothetical #2 Scenario

Hypothetical #3 Scenario

Hypothetical #4 Scenario

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Hypothetical #1

Jane comes into your office on a Monday morning and tells you that she ran into John over the weekend at the Safeway down the street from the middle school they both attend. She says that John followed her down the aisles holding melons in front of his chest and making comments about her body. She says she was so upset she ran home crying.

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Does Title IX apply, of so how?

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Hypothetical #2

Maria and Mark are both fifth graders who have never gotten along. At the beginning of the school year, Mark is disciplined for intentionally tripping Maria in the school yard. The next week, Mark reports that Maria and her friends are shouting at him, calling him smelly and ugly. According to Maria, he responds by chasing them around the yard, calling them fat whores and trying to pinch their bottoms. In October, their teacher brings in a drawing she saw Mark showing to the boy who sits next to him. The drawing shows a naked girl and is captioned “mildewy Maria”.

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Does Title IX apply, if so how?

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Hypothetical #3

Julia claims that Bobby, a boy in her history class, has been texting her inappropriate comments afterschool and making sexual remarks to her in class about how he likes chubby girls. Julia also alleged that Bobby has tried to touch her breasts during history class multiple times.

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Does Title IX apply, if so how?

Hypothetical #4

Sammy, a 40-year-old male, is a custodian.  He is assigned to clean up after lunch at the Middle School cafeteria. Recently, he has complained about a pattern of conduct by a female food service worker, Kelly.  The conduct has occurred over a period of two months.  During that time, she has made almost daily comments to him about his body – some quite graphic -- and insinuated that she’d like to see more of it outside of work.  Two weeks ago, Kelly asked Sammy out on a date, and Sammy said no and that he does not date co-workers. Yesterday, Kelly patted him on his bottom and asked him out again, saying she “won’t take no for an answer”.  Sammy now feels uncomfortable working in the same area as Kelly.

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Does Title IX apply, if so how?

How is the Title IX complaint process different from other District procedures?

• No discipline until the process is completed.
• If you are considering disciplining a student under Ed. Code 48900(n) [sexual assault] or 48900.2 [sexual harassment], then you may need to conduct a Title IX investigation first.
• Much more detailed procedural obligations.
• The parties need to receive written notice of the allegations that will be investigated and before interviews.
• The parties get the opportunity to review and respond to the evidence.
• The parties must receive a written investigation report and a separate report of the final decision
• More people involved.
• You may need 4 or more different people trained and ready to be involved for 1 complaint—the Title IX Coordinator, an Investigator, a Decisionmaker, and an Appeal Decision maker.

Title IX Complaint Process Timeline

• Title IX Coordinator receives a report of sexual harassment, informs student of the right to file a formal complaint, and offers supportive measures
• Day 0: Formal complaint is received by the District
• Title IX Coordinator sends notice of the allegations to be investigated to the parties
• Investigation begins
• Day 30: Investigation should be complete, and parties sent the evidence
• Parties have a chance to review and respond to the evidence [must have at least 10 days to review]
• Day 45: Investigative report sent to the parties [must be sent at least 10 days before the written determination]
• Parties have a chance to review and respond to investigative report and submit questions of witnesses
• Day 60: Last chance to send written determination sent to the parties
• Day 70: Last chance for parties to file an appeal
• Day 90: Written appeal determination sent to the parties

Time to Investigate!

Investigation

• Investigation must provide equal opportunity for both parties to present witnesses and evidence.

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• No “gag rule” – parties must be able to discuss allegations and gather evidence.

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• Parties must receive written notice of all meetings where they are expected to appear with enough time to prepare.

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• No limitation on parties’ right to have an advisor present at any interview or meeting. However, the District can limit the advisor’s participation during a meeting.

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Checklist for “Hostile Environment” Sexual Harassment

• Did the Respondent do something that affected the complainant, based on sex?
• Was the conduct unwelcome?
• Did the conduct occur at school, during a school activity, or in a place that the District controlled?
• Was the conduct severe and pervasive and objectively offensive?
• Did the conduct interfere with the complainant’s ability to participate in school or extracurricular activities?
• Would the conduct have had this effect on a “reasonable person” in the same position?

Investigation - Create a Plan

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• Outline the allegations, based on the notification letters to the parties
• Consider what facts are needed to prove or disprove each allegation – look at the Checklist
• Identify witnesses
• Parties
• Witnesses identified by parties
• Other possible witnesses to the incident(s)
• supervision staff
• Other students in the area
• Friends/confidants of the parties
• Other potential evidence (does anything need to be preserved?)

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Investigation

Plan

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Conducting Interviews

• Before asking questions, explain the “rules”/process
• With the parties (Complainant and Respondent), the Investigator may want to explain the process in more detail – e.g., investigator is neutral; decision will be made by another person; they will have a chance to review and respond to the evidence
• With the witnesses, the Investigator may want to explain that you are neutral and are gathering relevant information
• General Tips
• LISTEN
• No leading, confrontational, or accusatory questions
• Consider asking for a demonstration, especially with younger students
• Pay attention to body language
• Don’t jump in when the witness is quiet
• Be patient, friendly and maintain objectivity
• Be sensitive
• Take detailed notes!

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Conducting Interviews: DURING the Interview

• Draft an outline of questions to use as a guide
• But remember to LISTEN and follow up! Don’t use the outline as a script.
• Examples of when to follow-up:
• If a witness does not provide all of the details about an incident—e.g., if the Complainant says that the Respondent touched her inappropriately “sometimes,” the Investigator should follow-up about when and how often it happened.
• If a witness indicates that another witness may have additional information, then the Investigator should follow up with the additional witness.
• Ask open ended questions to obtain as many facts as possible about the incident
• The Ws – who, where, when, what happened
• How often did things happen?
• What happened in your class yesterday morning? vs. Did you call a child a sissy yesterday?

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Conducting Interview: BEYOND the Questions

• Parties (Complainant and Respondent):
• Ask the parties if they discussed the incident with anyone else and to identify witnesses
• Ask if they have any relevant documents (e.g., text messages)
• The Complainant – Ask about the effect of the incident
• The Respondent – Ask why the Complainant might have made the allegations
• Witnesses:
• Start with background questions:
• Relationship with and between the parties
• Witnesses’ basis of knowledge

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Trauma Informed Questioning

• Use Trauma Informed Questioning:
• Reframe questions in a manner that helps individual retrieve memories from a traumatic event and assist in gathering more information while making the individual feel more supported:
• compassion
• empathy
• patience

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• Applies to both parties and sometimes witnesses.

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• Identify signs of trauma and consider them in questioning.

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• Shift mindset from “What is wrong with you?” to “What happened to you?”

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TABLE TALK: Interviewing the Complainant, Respondent and Witnesses

Get into your investigator role:

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• Select Hypothetical Interview A or B
• Create a Plan
• Construct your questions
• Share out

Hypothetical A- Interview

Julia has just filed a complaint alleging that Bobby, a boy in her history class, has been texting her inappropriate comments afterschool and making sexual remarks to her in class about how he likes chubby girls. Julia also alleged that Bobby has tried to touch her breasts during history class multiple times.

1. What would be in your investigation plan?
2. What are some questions you should ask Julia?
3. What are some questions you should ask Bobby?

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You are the Investigator for Julia’s complaint, and it is time to start your investigation.

Hypothetical B- Interview

Sammy, a 40-year-old male, is a custodian.  He is assigned to clean up after lunch at the Middle School cafeteria. Recently, he has complained about a pattern of conduct by a female food service worker, Kelly.  The conduct has occurred over a period of two months.  During that time, she has made almost daily comments to him about his body – some quite graphic -- and insinuated that she’d like to see more of it outside of work.  Two weeks ago, Kelly asked Sammy out on a date, and Sammy said no and that he does not date co-workers. Yesterday, Kelly patted him on his bottom and asked him out again, saying she “won’t take no for an answer”.  Sammy now feels uncomfortable working in the same area as Kelly.

1. What would be in your investigation plan?
2. What are some questions you should ask Sammy?
3. What are some questions you should ask Kelly?

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You are the Investigator for Sammy’s complaint, and it is time to start your investigation.

The Art of Note Taking

• What to include:
• Who, What, Where, When, Why, How
• Summary of question and response
• Investigator’s Observations

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• What NOT to include:
• Groundless accusations
• Personal opinions
• Extraneous information

*** Remember that both parties get your notes.

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Special Considerations for Interviewing Employees

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• The Right to Representation - Weingarten

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• Collective Bargaining Agreement

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• The Obligation to Participate/ Spielbauer Case

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• “Taking the Fifth” - Consider Lybarger Warning

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Opportunity to Inspect Evidence

• Before the investigator issues the investigation report, parties must be given at least 10 days to inspect and review all evidence gathered by the investigator
• includes both inculpatory and exculpatory evidence that is directly related to the allegation raised in the formal complaint.

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• Parties may inspect and review evidence even if it will not be relied upon in the determination.

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• Redaction allowed if it is not “directly related”.

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• If there is a conflict between FERPA and Title IX, Title IX governs

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Writing the Investigative Report

• Purpose – summarize the relevant evidence for the Decision-Maker to make a determination of responsibility.

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• Include all evidence that is relevant to the elements in the Checklist – “inculpatory or exculpatory”

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• Do not include extraneous information provided by witnesses

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• No conclusions – Remember, the Investigator does not make the decision!

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Questions??

Thank You! ��kriggs@ghslaw.com��callen@ghslaw.com��www.ghslaw.com�