TITLE IX COMPLIANCE TRAINING

Practical Solutions for a Complex Process

Laura Tubbs Booth

Megan J. Renslow

Christian R. Shafer

WELCOME!

TITLE IX

What do you think of when you think about Title IX?

TITLE IX PROVIDES….

“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

​

PROHIBITS DISCRIMINATION ON THE BASIS OF SEX

• Discrimination includes harassment
• Requires equity in treatment of complainant/respondent

NEW REGS EFFECTIVE 8/14/2020

GENERAL RESPONSIBILITIES

For Public Elementary/Secondary Schools

SCHOOLS MUST:

DEFINITIONS

RESPONSE TO SEX HARASSMENT

• A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent..

RECIPIENT

of Federal Funds

SEX HARASSMENT IS…

Conduct based on sex and …

SEX HARASSMENT IS…

Conduct based on sex :

1. And a school employee conditions receipt of a benefit on participating in unwelcome sexual conduct or

​

2. 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’s education program or activity; or

​

3. Sexual assault, dating violence, domestic violence, or stalking, as those terms are defined by federal law.

​

​

​

ACTUAL KNOWLEDGE

• If an employee of the school knows of sex harassment or
• Allegations of sex harassment the district has “actual knowledge”

EDUCATION PROGRAM OR ACTIVITY

PERSON IN THE UNITED STATES

RESPONSE: �NOT DELIBERATELY INDIFFERENT

• Davis v. Monroe County Bd. of Ed.

CASE STUDY

• LaShonda was a fifth grade student
• Reports to parents & teacher three incidents during school by a classmate named Kim
• Mom speaks to teacher
• Eventually parents speak to principal

CASE STUDY CONTINUED…

LaShonda reports to physical education teacher when Kim put a door stop in pants and motions toward LaShonda

P.E. teacher reports to principal

Another student asks to speak to principal but is denied

LaShonda’s grades plummet, does not want to attend school, suicide note.

​

​

* Davis v. Monroe Cty. Bd of Education, 526 U.S. 629 (1999)

​

DELIBERATELY INDIFFERENT

School is deliberately indifferent if it acted unreasonably in light of the known circumstances

FORMAL COMPLAINT

REPORT VS. FORMAL COMPLAINT

Report

• Actual knowledge by school employee of harassment or
• Actual knowledge by employee of report or
• Complainant reports to Title IX Coordinator but no formal report

Formal Complaint

• By the complainant in writing or
• By the Title IX Coordinator

​

SUPPORTIVE MEASURES

School must offer the complainant supportive measures regardless of formal complaint

ROLES

TITLE IX COORDINATOR

• Understands law and policy – trained
• Must be an employee
• Can also be investigator
• May facilitate informal resolution
• MAY NOT be decision maker or appeal decision maker
• Responsible for coordination of grievance process & implementation of remedies

​

INVESTIGATOR

• Understands law and policy-trained to investigate
• May not be biased or have conflict of interest
• Must summarize findings in objective way
• May make recommendation but not required

​

DECISION-MAKER

• Understands law and policy – trained
• May not be biased or have conflict of interest
• Must issue written report in compliance with requirements
• May not be Title IX investigator and may not decide appeal

APPEAL DECISION-MAKER

• Must allow for written statement
• Be unbiased and have no conflict of interest
• May not be Title IX Coordinator or Decision-Maker

PRACTICALLY SPEAKING…

• Title IX Coordinator can also be the investigator & facilitate informal resolution
• Title IX Coordinator can’t be decision-maker or appeal decision maker
• Each role must be trained
• Who might be one of the three-four roles:
• Superintendent
• HR Professional
• Assistant Principal
• Athletic/Acitivites Director
• Dean
• Social Worker
• Counselor etc.

STEP ONE �ROLE OF THE TITLE IX COORDINATOR

ACTIONS TO TAKE UPON RECEIPT OF A REPORT

ACTIONS TO TAKE UPON RECEIPT OF A COMPLAINT �

MANDATORY�DISMISSAL

​

A formal complaint must immediately be dismissed if:

a. The conduct alleged in the formal complaint, even if proven, does not meet the definition of sexual harassment set by these regulations;

b. The conduct alleged in the formal complaint did not occur in the school or school district’s education program or activity; or

c. The conduct alleged did not occur against a person in the United States.

​

PERMISSIVE DISMISSAL

A formal complaint may be dismissed if:

​

a. The complainant notifies the Title IX Coordinator, in writing, that they would like to withdraw the complaint;

b. The respondent is no longer enrolled at or employed by the school; or

c. Specific circumstances prevent the school or school district from gathering evidence sufficient to reach a determination as to the complaint.

​

RESPONSIBILITIES WHEN DISMISSING A COMPLAINT

KEEP IN MIND…

• Conduct that does not rise to the level of a Title IX complaint may still require action

NOTICE TO PARTIES

1. Grievance/Informal Resolution Process;
2. Allegations;
3. Presumption Respondent Is Not Responsible;
4. Right to an Advisor; and
5. Code of Conduct Prohibits False Statements or Information.

​

INTERIM SUPPORT MEASURES

Supportive measures, offered equally to both parties, are non-disciplinary measures including:

• Counseling
• Modification of deadlines/other adjustments
• Modifications of work or class schedules
• Campus escort services
• Mutual restrictions on contact between parties
• Changes in work or school locations
• Leaves of absence
• Increased security and monitoring

​

INTERIM EMERGENCY REMOVAL OF STUDENT RESPONDENTS

• Mandatory individualized safety and risk analysis
• Immediate threat arising from the allegations of sexual harassment
• The threat must relate to the physical health or safety of any individual
• Requires notice to the respondent and an opportunity for challenge immediately following removal
• The respondent bears the burden of proving the removal decision was incorrect 
• Not applicable to offenses outside Title IX

INTERIM EMERGENCY REMOVAL OF EMPLOYEES

• Non-Applicability of Title IX Procedures
• Factors to Consider
• Possible Directives to Employees

INFORMAL RESOLUTION

• Timing
• Notice
• Non-Applicability to Employees

STEP TWO �ROLE OF THE TITLE IX INVESTIGATOR

NEW TITLE IX REQUIREMENTS FOR INVESTIGATIONS

THE SCHOOL OR DISTRICT BEARS THE BURDEN OF PROOF, NOT EITHER PARTY

SPECIFIC TYPES OF INFORMATION AND DATA CONCERNS IN A TITLE IX INVESTIGATION

PRACTICAL CONSIDERATIONS

• Consolidation of multiple complaints

​

• All parties must be given an equal opportunity to present witnesses

​

REQUIRED NOTICES AND OPPORTUNITY TO REVIEW EVIDENCE

INVESTIGATION REPORTS

STEPS TO TAKE BEFORE CONDUCTING THE INVESTIGATION

INITIAL CONSIDERATIONS: EXTERNAL REPORTS

• Remember to make any mandated reports of maltreatment

​

• Potential referrals to law enforcement

​

A BRIEF DATA PRACTICES INTERLUDE

LASHONDA’S CLAIMS: WHO MIGHT THE INVESTIGATOR WANT TO INTERVIEW?

INTERVIEW BASICS

REQUIRED INTERVIEW NOTICE

OPENING REMARKS

DO NOT GUARANTEE RESULTS

INTERVIEWING THE COMPLAINANT AND FACT WITNESSES

INTERVIEWING THE COMPLAINANT AND WITNESSES

• Short, open-ended questions

​

​

THE INVESTIGATOR MIGHT HAVE TO DEFEND THE INTERVIEW QUESTIONS, SO…

…WATCH OUT FOR BIASES!

SOME SPECIFIC TIPS FOR INTERVIEWING WITNESSES AND COMPLAINANTS

SPECIAL CONSIDERATIONS FOR INTERVIEWING THE RESPONDENT

WATCH OUT FOR BIAS IN THE COMPLAINANT INTERVIEW TOO!

OPENING REMARKS

WHAT IF THE COMPLAINANT REFUSES TO ANSWER?

SPECIFIC STRATEGIES FOR INTERVIEWING THE COMPLAINANT

BACK TO LASHONDA: WHAT KINDS OF QUESTIONS MIGHT THE INVESTIGATOR ASK?

WAS THE WITNESS OR PARTY CREDIBLE?

SURVEILLANCE FOOTAGE

SOCIAL MEDIA IN INVESTIGATIONS

IS THERE ANY TYPE OF ELECTRONIC EVIDENCE THAT THE INVESTIGATOR MIGHT CONSIDER IN THE LASHONDA INVESTIGATION?

COORDINATING ANY INVESTIGATION WITH LAW ENFORCEMENT

INVESTIGATION CONCLUSIONS MUST BE BASED ON RELEVANT EVIDENCE

WRITTEN INVESTIGATION REPORTS

STRATEGIES FOR WRITING AN INVESTIGATION REPORT

AVOIDING CONFLICTS OF INTEREST

ONE MORE WORD ABOUT BIASES

STEP THREE �ROLE OF THE TITLE IX DECISION MAKER

SELECT A STANDARD OF REVIEW

Preponderance of the Evidence

“Preponderance of the evidence” means that the respondent will be found responsible only if it is more likely than not that he or she engaged in the conduct constituting sexual harassment.

Clear and Convincing Evidence

“Clear and convincing evidence” means that the respondent will be found responsible only if it is highly more likely to be true that the respondent engaged in the conduct constituting sexual harassment.

​

PROCEDURES REQUIRED PRIOR TO A DECISION

• Opportunity for Parties to Respond to the Report

• Notification of the Right to a Hearing and/or Written Questions

SUBMISSION OF WRITTEN QUESTIONS �

RELEVANCY

​

“Relevant evidence" means evidence having any tendency to make the existence of any fact more probable or less probable than it would be without the evidence.

WHAT EVIDENCE MAY BE APPROPRIATE TO EXCLUDE OR ALLOW IN LASHONDA’S CASE?

LIVE HEARINGS

THE DETERMINATION

• Identification of the allegations
• Description of the procedural steps taken
• Findings of fact
• Conclusions applying the code of conduct/policy
• Assignment of responsibility, rationale, sanctions and remedies
• The procedure for appealing the determination of responsibility

STEP FOUR �IMPLEMENTATION OF THE DECISION AND THE APPEALS PROCESS (ROLE OF THE APPELLATE DECISION-MAKER)

POTENTIAL�REMEDIES

APPEAL

• Either party may appeal:
• Determination of Responsibility or
• Dismissal

APPEAL ON THE BASIS OF…

OR ANY OTHER BASIS FOR APPEAL

• As long as both parties have the right to appeal on that basis

SCHOOL MUST….

TRAINING MATERIALS

• Must train the three roles at a minimum
• Must ensure employees know their responsibility to report = actual knowledge
• Must retain training materials for 7 years
• Must retain complaints, investigation, decision, appeal decision for 7 years
• Must review policy annually

​

​

​