Title IX Decision Makers &

Appeal Decision Makers Training

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October 19, 2026

Janet Ly, Esq.

Today’s Agenda

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• Roles and Duties of:

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• Decision Makers

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• Appeal Decision Makers

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

• No discipline before the entire process is completed
• Written notice to parties of allegations and planned interview before interviews or other meetings
• Both parties have the opportunity to review all evidence and respond
• Both parties must receive a written investigation report and a separate report of the final decision
• The final decision must be made by someone other than the investigator or the Title IX Coordinator
• Both parties must have the chance to appeal to someone who was not involved in the investigation or the decision.

Title IX Team

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1. Title IX Coordinator
2. Investigator
3. Decision Maker
4. Appeal Decision-Maker
5. Facilitator(s) of the Informal Resolution Process

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All team members need to have received training in the definition of sexual harassment, the scope of the District’s education program, the Title IX complaint process, and how to serve impartially, as well as the specific requirements of their role.

Title IX Complaint Process Timeline

• 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 40: 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)

Title IX Complaint Process Timeline

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• Day 50: 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: 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

�������������The Decision Making �Process

Investigation Report Completed- Now what?

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• At least 10 days prior to the determination of responsibility, the investigator must send the investigative report to each party and the party’s advisors in electronic format or hard copy, for their review and written response.

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• The Investigator has considered the parties’ responses, created an investigative report, and sent a copy of this report to both parties and their advisors.

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• The District has appointed a qualified and appropriate decision maker to reach a determination of responsibility.

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Title IX Decision-Maker Duties

• Review the investigation report and prepare questions for each of the parties.

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• Facilitate questioning including collecting questions from each party for the other party and witnesses.

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• Document questions that were deemed not relevant during the questioning period and the rationale for those decisions.

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• If applicable, facilitate hearing (optional in K-12):

- Document questions intended for parties/witnesses who were not present for hearing

- Document questions which were asked and a party/witness declined to answer

- Document questions that were deemed not relevant or inappropriate during questioning period

Title IX Decision-Maker(s) Duties Cont’d …

• Determine whether alleged conduct occurred and whether the respondent is responsible.

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• Provide a written determination to the parties.

Determination of Responsibility

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• Before making a decision, the Decision-Maker must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow up questions from each party:

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• The Decision-Maker must explain any decision to exclude questions as not relevant

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• Decision-Maker determines responsibility based on preponderance of the relevant evidence.

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• Evidence about Complainant’s prior sexual behavior is irrelevant unless offered to prove someone else committed the conduct or if offered to prove consent

Decision Mkaking-�Relevance

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• The decision maker may only allow relevant questions.

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• What is a relevant question?

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• “Relevance” is not defined in the regulations.

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• Ask yourself 2 things:

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• First, what fact is the question trying to establish?

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• Second, would the answer make that fact more or less likely, and does that fact matter to the determination?

• If the answer is yes, the question may be relevant.

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Hypothetical – Determining Relevance

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Michelle is a junior on the school’s dance team and has dated two different football players this year. She had sex with both of them and now that she has broken up with them, they’ve told the entire team about the details of everything they’ve done. They’ve shared intimate texts and texts between the two of them and now the whole school knows. Michelle has been called a “slut” and a “whore” by various classmates, but especially by Joe, her most recent boyfriend. On two occasions, someone grabbed her buttocks while she was standing at her school locker. She does not know who was responsible. She files a formal complaint and delivers it to the Title IX Coordinator.

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• Respondent to Complainant: Have you quit the dance team since the conduct you alleged began?

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• Is this a relevant question?

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Determining Relevance

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• Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant.

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• Unless:

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• Offered to prove that someone other than the Respondent committed the conduct alleged by the Complaint; or

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• Concern specific incidents of the Complainant’s prior sexual behavior with respect to Respondent and are offered to prove consent.

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Hypothetical – Determining Relevance

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Michelle is a Junior on the school’s dance team and has dated two different football players this year. She had sex with both of them and now that she has broken up with them, they’ve told the entire team about the details of everything they’ve done. They’ve shared intimidate texts and texts between the two of them and now the whole school knows. Michelle has been called a “slut” and a “whore” by various classmates, but especially by Joe., her most recent boyfriend. On two occasions, someone grabbed her buttocks while she was standing at her school locker. She does not know who was responsible. She files a formal complaint and delivers it to the Title IX Coordinator.

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• Respondent to Complainant: How many people have you had sex with?
• Complainant to Respondent: How many people have you had sex with?
• Are these relevant questions?

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Hypothetical – Determining Relevance

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Emily is a sophomore student who has struggled academically. Her math teacher suggested she start meeting with him after school for private tutoring, at no cost. Her parents are aware. Emily meets with her teacher for 2 months in his classroom with the door shut, and then during a meeting the teacher leans in towards her, puts his hand on her stomach, and kisses her. She was stunned, didn’t say anything, and went home and told her parents. The following day the parents call the school counselor and tell her what happened. They do not want to see the teacher ever again and they do not want to participate in an investigation because it will be too traumatic for Emily.

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• Respondent to Complainant: How many people have you had sex with?
• Respondent to Complainant: Did your first kiss happen after you put your hand on a boy’s stomach and then kissed him?
• Respondent to Complainant?: Were you given detention last year for plagiarizing a paper then lying about it?

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Decision-Maker’s Report

• Decision-Maker must issue a written report that includes:

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• Identification of the allegations potentially constituting sexual harassment;

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• A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notification to the parties, interviews with parties and witnesses, site visits, and methods used to gather other evidence;

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• Findings of fact supporting the determination;

Decision-Maker’s Report

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• A statement of, and rationale for, any disciplinary actions the District imposes on the respondent, and whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided to the complainant; and

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• The District’s procedures and permissible bases for the complainant and respondent to appeal.

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?

Decision-Maker’s Factual Findings

• Make a factual finding regarding every material allegation in the complaint:

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• Sustained or Not Sustained

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• Factors in Assessing Credibility:

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• Corroboration / Lack of Corroboration
• Consistency / Lack of Consistency
• Knowledge or Opportunity to Observe
• Inherent Plausibility – is the testimony believed on its face?
• Demeanor – did the person seem to be telling the truth or lying?
• Motive to Falsify – did the person have a reason to lie?

Make a Determination Regarding Responsibility

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• Apply the standard of evidence your District has chosen to use:

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• Preponderance of the Evidence

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• Clear and Convincing Evidence

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• The same standard of evidence must be used for all formal complaints of sexual harassment against students and employees.

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Standard of Evidence

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Tips for Decision-Maker’s

Report Writing

• Build and Use a Template

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• Use the Active Voice

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• Use Headings, Bullet Points and Tables as necessary

Privacy Considerations

• Keep confidential the identity of anyone who reports sexual harassment, files a complaint, or is accused of sexual harassment except as necessary to conduct an investigation

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• BUT, keep in mind confidentiality is limited in practice:
• Respondents are entitled to written notice if a formal complaint is filed
• Parties’ ability to discuss the allegations may not be limited
• Parties must be permitted to review all evidence, including witness statements
• Complainant must be informed of all remedies, including discipline of the respondent, regardless of FERPA considerations

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Appeal

• Both parties get 10 days to file an appeal in writing from either a decision made after an investigation or from the dismissal of a formal complaint.
• 3 Bases for Appeal:
• Procedural irregularity that affected the outcome;
• New evidence that was not previously available and would affect the outcome; or
• Conflict of interest or bias by Title IX Coordinator, investigator or decision-maker that affected the outcome.
• If an appeal is filed, the Appeal Decision-Maker must:
• Notify the other party
• Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome
• Issue a decision within 20 days

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Deciding the Appeal…

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• An Appeal is a review of the original determination, not a new investigation or a rehearing of the entire matter.

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• Limit the review of the Determination of Responsibility to the specific issue raised in the Appeal and the statements the parties submitted in the Appeal.

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• The Appeals Decision Maker should not substitute his/her judgment for that of the Decision Maker.

Deciding the Appeal…

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• If no additional investigation is needed, the Appeal Decision Maker should identify the error and correct it, explaining how that changes the Determination of Responsibility, sanctions, and/or remedies.

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• If additional investigation is needed, the Appeal Decision Maker should remand the Complaint to the Decision Maker with instructions on how to correct the error.

Appeal Decision

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• Identify the basis for appeal.

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• Describe the relevant procedural steps taken from the Determination of Responsibility.

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• Describe the relevant findings of facts and conclusions in the Determination of Responsibility.

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• Include a statement of, and rationale for, the result as to each basis for appeal. Describe the result of the appeal.

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Final Thoughts

The District may not impose any disciplinary sanctions against Respondent until the grievance process has concluded.

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The Title IX Coordinator is responsible for effectively implementing any sanctions and/or remedies.

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The Determination of Responsibility must include a statement of whether remedies designed to restore or preserve equal access to the education program will be provided by the District to the Complainant.

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Remedies may be the same as supportive measures.

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Title IX

jly@ghslaw.com

Bakersfield